By Jerome A. Cohen
Here is an important article worthy of broader attention. It was recently reported that Canada’s ex-chief justice, Beverley McLachlin, has renewed her term on the Hong Kong Court of Final Appeal. Until this past year, I thought that, on balance, it was desirable for the overseas non-permanent judges of Hong Kong’s Court of Final Appeal to cling to their cushy and limited responsibilities. But the balance appears to have shifted. Increasingly they seem mere ornaments whose largely nominal presence in major controversial cases misleads the public at home and abroad into believing that all continues to be well with the Hong Kong courts.
In assessing the wisdom of their continuing participation, one should ask questions such as: Do they take part in the new national security cases that are beginning to occupy the courts? What role did they play, for example, in Jimmy Lai’s bail case?
Canada’s Professor Alford and Lawyer Shi are surely right in regretting that former Chief Justice McLachlin renewed her appointment at this time, lending her great prestige to what must now be called the Takeover rather than the Handover of Hong Kong. Will she and her white, male overseas colleagues analyze and expose the restrictions being imposed on the Hong Kong judiciary?
There is no risk that American non-permanent overseas judges will inform the public of the true situation since the Basic Law has been interpreted to exclude Americans from selection among the “common law” judges from which this elite is chosen. “Commonwealth” has replaced “common law” in practice. Yet, building on the English experience that dates back to Lord Coke, the United States also offers useful examples of the complex political-legal struggles to establish and maintain judicial independence.
Focus on the Court of Final Appeal seems to divert attention from the more important and difficult dilemmas of the many Hong Kong judges with foreign nationality who serve on the lower courts that bear the principal burdens of coping with Beijing’s restrictions.