Why Chief Justice McLachlin’s Confidence in Hong Kong’s Courts Should Give Us Pause
From London to Beijing
Almost 23 years ago, the United Kingdom handed over control of their Hong Kong colony to the People’s Republic of China (PRC). As part of the transfer agreement, Hong Kong would become a Special Administrative Region (SAR) of the communist nation, but would be able to retain the economic and legal systems it had developed under British rule. Specifically, Hong Kong maintained its free-market economy and common-law courts, which stood in stark contrast to the arrangements that existed in mainland China. The PRC would assume full control over Hong Kong’s foreign and military affairs, and many symbolic indicators of British rule, including who was on the currency and which flags flew over government buildings, were substituted with Chinese analogues.
The Basic Law was the glue that held the entire transition together. It gave full expression to the principle that was to animate post-colonial Hong Kong for the next 50 years: one country, two systems. In many ways it fulfilled its promise, and in many ways it did not.
Chief Justice in a China Court
On November 22nd, 2019, former Chief Justice of the Supreme Court of Canada Beverley McLachlin began to hear cases as a member of Hong Kong’s Court of Final Appeal (HKCFA). The HKCFA is the successor to the Judicial Committee of the Privy Council, which had the final say on all legal matters in British Hong Kong. As part of the Basic Law, the HKCFA is comprised of local permanent court members and non-permanent members from other nations. Chief Justice McLachlin is one of those appointees, as is Baroness Brenda Hale, former President of the Supreme Court of the United Kingdom. McLachlin heard a total of three cases during her one-month tenure, in the midst of massive protests in the city that captured the world’s attention.
McLachlin’s remarks about the independence of the HKCFA are noteworthy. “The court is very independent; the judges are very high calibre,” she told The Canadian Press. The latter part of her statement is in all likelihood true, given some of the distinguished names we know of who have served on the Court (including herself), but the former segment should give anyone concerned with the rule of law pause.
Made in China
In the Supreme Court of Canada’s decision in British Columbia v Imperial Tobacco, Justice McLachlin, in concurrence with the author of the decision, Justice Major, held that judicial independence consisted of the “freedom to render decisions based solely on the requirements of law and justice.” More specifically, she held that it “required the judiciary to be left free to act without improper interference from any other entity,” including, among others, the executive and legislative branches of government.
The great irony of this nearly 15-year-old decision is that the high standard Chief Justice McLachlin had set for a truly independent judiciary is the same one the court she presided over just last year has failed to meet. The clearest evidence that the HKCFA’s status as an independent court has and continues to be compromised can be found in Article 158(1) of the Basic Law. This article provides the Standing Committee of the National People’s Congress (NPCSC), an organ of the ruling Communist Party, the power of final interpretation. In essence, before or after a decision is rendered by the HKCFA, should it touch on the interests of the central Chinese government, the NPCSC would be able to step in and decide the legal matter based on its own determinations.
This power is not one that, contrary to McLachlin’s descriptions, is used “fairly sparingly”. In 2004, the NPCSC stepped in to quash a court dispute regarding Articles 45 and 68 of the Basic Law and whether they allowed for the possibility of universal suffrage in Hong Kong. In 2005, the NPCSC intervened yet again, in a court dispute regarding the term length of the Chief Executive of Hong Kong following a resignation, imposing limitations on how long the successor could hold office. More recently, in 2016, the NPCSC interpreted Article 104 of Hong Kong’s Basic Law, holding that newly elected members of Hong Kong’s Legislative Council must swear allegiance to the People’s Republic in a carefully designed oath of office. When these edicts are coupled with the White Paper the Communist Party issued in June of 2014 — which classified judges of the HKCFA as “administrators” and mandated that they be “patriotic” to the PRC — McLachlin’s contention that the HKCFA is an independent body begins to raise serious doubts.
Each of these examples, whether intrinsic in the structure of the Basic Law or extrinsic in the pressure applied by the Communist Party, point to a Court of Final Appeal that is not “left free to act without improper interference from any other entity,” especially the legislative and executive branches. Judges on Hong Kong’s highest court always have to deliberate with the spectre of the NPCSC looming over their decisions, as well as the increasing effort of the Standing Committee to nudge judges into organizing their relationships, ordering their affairs, and rendering their decisions in ways that are favourable to the Communist Party’s interests. The non-permanent foreign members of the Final Court of Appeal, rather than underscoring the independence of the judicial body, have served as scaffolding for the false bravado of freedom the Chinese government has laboured to maintain in Hong Kong’s highest court. With all due respect to the Chief Justice, it would be generous and liberal to a fault to frame the current functioning of Hong Kong’s courts as consistent with the principles set out, by her, in Imperial Tobacco. Mao’s gaze has and continues to loom over the Pearl of the Orient.