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Mark Mancini: Canada’s former chief justice should resign from the Hong Kong Court of Final Appeal

Commentary

Canadian judges carry a great deal of power. But as Uncle Ben so eloquently said, with great power comes great responsibility. Part of that responsibility includes a need to protect judicial independence and impartiality, including the perception that judges can decide cases with freedom from influence. Importantly, judges themselves should guard against the indirect use of their positions by those who have other agendas. This is already a problem in Canada: former Supreme Court judges have been “consulted” for scandals across the board, from SNC-Lavalin to controversies at the University of Toronto.

This is why it is disturbing that former Chief Justice Beverly McLachlin has not yet resigned from the Hong Kong Court of Final Appeal. Canadian lawyers should be encouraging McLachlin to resile from the weaponization of her prestige for China’s ends.

The situation in Hong Kong is abhorrent. For the last number of years, the Chinese government has cracked down on pro-democracy protestors in Hong Kong, leading to violence. This is happening as China has increasingly exercised more control over Hong Kong, passing the sweeping national security law, and clamping down on rights and freedoms. To Western eyes, the aggression appears comparable to the travesty at Tiananmen Square—which, to this day, is formally prohibited from discussion in China.

One victim of this repressive crackdown was Hong Kong’s independent judicial system. Once vaunted as an example of Hong Kong’s commitment to the rule of law, the court includes 10 foreign “non-permanent judges.” The inclusion of judges from foreign jurisdictions like Canada and the United Kingdom was part of the bargain struck in 1997 between China and the U.K. when Hong Kong was transferred to China. For McLachlin, one of the big selling points of the court was the impartiality of its foreign judges. 

Impartial the judges may be, but the system itself is no longer independent from China, and McLachlin’s comments now seem like wishful thinking. In 2021, a Chinese official overseeing the national security law claimed that the Hong Kong judiciary “must highly manifest the national will and national interest…”Hong Kong’s courts should reflect China’s will, says official https://www.theguardian.com/world/2021/jun/30/hong-kong-legal-system-should-reflect-china-will-says-official And for this reason, other foreign judges of the Hong Kong court were concerned about perception. In a statement from Lord Reed, president of the U.K. Supreme Court, he announced that judges of his court could no longer sit in Hong Kong “without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression, to which the Justices of the Supreme Court are deeply committed.”Role of UK Supreme Court judges on the Hong Kong Court of Final Appeal – update https://www.supremecourt.uk/news/role-of-uk-judges-on-the-hong-kong-court-of-final-appeal-update-march-2022.html 

Why hasn’t McLachlin made this same judgment?

The question is not unfair. McLachlin has spent a career in Canada advocating for human rights, speaking out against “cultural genocide,” and encouraging moral diversity. She was a long-time member of a court that one of her former colleagues—dramatically—referred to as the final forum for adjudication of “which contested values in a society should triumph.” In a country like China, where there are independent legal observers warning about ongoing genocide,Chinese government responsible for genocide in Xinjiang, says independent report https://www.cbc.ca/news/politics/china-responsible-genocide-independent-report-1.5942289 McLachlin’s entire career should point to a principled resignation. If there is even a perception that these values are at risk, there should be good reason to step aside from a judiciary under the thumb of Beijing.

McLachlin has made a different choice. McLachlin said that she received assurances that the judiciary would continue to be independent. She expressed worry that her leaving “will weaken the last bastion perhaps of intact democracy in Hong Kong.” She promised that if her principles were put at risk, she would resign.

Assuming this is true, nothing precludes the public from raising justified concerns about McLachlin’s continued association with the compromised judiciary in Hong Kong. For one, whether or not McLachlin believes so, the public could reasonably assume that her status as a former judge is legitimizing China’s treatment of Hong Kong. Even if McLachlin is right, and she is the last woman standing, perhaps the final bell has rung on the rule of law in Hong Kong. If so, the perception of the Canadian judicial system should be preserved in the face of China’s aggression. 

Moreover, the Canadian public should wonder if talk is cheap. McLachlin has been recognized for her advocacy and jurisprudence in Canada. In this case, the perception of the Canadian judiciary is running right up against not only the ideal of judicial independence but the very principles on which McLachlin has staked her career. Actions—even a resignation—speak louder than words.

Most importantly, the role of the judge comes with power, prestige, and privilege. But these things must be protected from weaponization by domestic or foreign actors. In most situations, the best person to weigh the values at play is the judge herself, and we trust her to protect the role. But where the judge arguably fails to adequately do so, and the public has reason to be concerned, it is the job of all of us to speak up. In this case, it is hard to believe that the Chinese government has anything else in mind other than full control of Hong Kong. 

Maybe, as she says, McLachlin has made a principled decision to remain on the Court in order to protect the rule of law from China’s attack.Former Canadian chief justice says she’s staying on Hong Kong court to help preserve city’s ‘last bastion of democracy’ https://nationalpost.com/news/world/former-canadian-chief-justice-says-shes-staying-on-hong-kong-court-to-help-preserve-citys-last-bastion-of-democracy She is not alone; other foreign judges on the Hong Kong court have apparently done the same. And someone might even suggest that as a former judge, she is not bound by the same rules as a current judge. But none of this gets to the point. Once the perception of impartiality has been ruined, no judge—especially a foreign judge with McLachlin’s prestige and credentials—should lend her credibility to a sham. If there is even a risk of this occurring, the public and the bar should expect the judge to resign and protect the judicial role, not for her own sake, but for the sake of the Canadian judicial system. So it should be with McLachlin.

Sean Speer: A lament for conservatism

Commentary

Jason Kenney’s swift resignation as United Conservative Party leader is a lamentable outcome for Canadian conservatism. It reflects the rise of an oppositional mindset on the Right that is bad for Conservative politics and the country as a whole to the extent that it marginalizes centre-right ideas and enables progressives to govern essentially unchecked. 

Alberta’s Kenney-led government wasn’t perfect—no government ever is—but it was the country’s most ambitious centre-right provincial government since the Harris government’s Common-Sense Revolution in Ontario more than a quarter-century ago. 

There was virtually no area of provincial policy, from taxes and spending to education to health care and everything in between, that wasn’t the subject of energetic reform. The totality of the government’s reformist impulses shifted the Alberta government decidedly in a more conservative direction and in so doing set out a policy playbook for other provincial Conservatives to draw from.Jason Kenney’s critics are wrong. Alberta is the only place conservatism is winning https://nationalpost.com/opinion/sean-speer-jason-kenneys-critics-are-wrong-alberta-is-the-only-place-conservatism-is-winning 

One would think that such a successful agenda would have widespread support among Conservatives (and conservatives). Yet nearly half of UCP members who cast ballots in the party’s leadership review disapproved of Kenney’s leadership.The final tally of the leadership review came at 51.4 percent approval of Kenney’s leadership and 48.6 percent disapproval. 

The obvious question is: what gives?

Even accounting for the naked ambitions of some of the anti-Kenney forces such as the self-evidently unserious Brian Jean or serially foolish Danielle Smith doesn’t quite explain it. There’s something bigger going on. 

There’s a small yet spirited minority of grassroot conservatives who’ve come to define their politics in solely oppositional terms. It derives from a position of perceived weakness in modern society. They see mainstream institutions (including corporations, universities, and the media) succumbing to an assertive form of progressivism and feel increasingly embattled in a culture that at times can be quite hostile to their ideas and values. These feelings of powerlessness, marginalization, and condescension are reinforced by online sources and American conservative media. 

The result is a siege mentality that’s more reactionary than it is conservative. These people aren’t interested in incremental policy reforms. They’re looking for a fight. They want to toss a hand grenade into the cathedralA brief explanation of the cathedral https://graymirror.substack.com/p/a-brief-explanation-of-the-cathedral?s=r of our mainstream institutions. 

This oppositional conservatism has of course been exacerbated by the COVID-19 lockdowns. The entire pandemic experience laid bare in their minds the corruption of the political and expert classes. The so-called “freedom convoy” was the clearest expression of their anger. Now Kenney’s sacking is its most significant.  

There will be plenty of opportunity in the coming days to assess the political fallout of his departure including the strong likelihood that it will lead to an NDP government in the forthcoming provincial election. But permit me to make a big-picture point about what it means for Canadian conservatism. 

Conservatism’s instinct to conserve can put it at something of a structural disadvantage against the false yet compelling utopian politics of modern progressivism. Conservatives have to be the ones that raise questions about costs, trade-offs, and inadvertent consequences. This invariably risks sounding a bit negative or gloomy. 

Conservatives must therefore balance their inherent realism by being aspirational and confident. They need to bring their ideas and values to bear on the key issues facing their society in the form of an affirmative agenda of steady yet sensible reform. 

This necessarily involves the hard work of ideation, policy development, and implementation. It’s not as easy or fun as throwing hand grenades but the long-run payoff is far greater. As my former boss Stephen Harper once said: “if you make conservatism relevant to ordinary working people, you make the most powerful political philosophy in Western democratic society.”Working class returning to fold, Harper says https://www.theglobeandmail.com/news/national/working-class-returning-to-fold-harper-says/article701725/

The forces that have led to Kenney’s departure aren’t interested in or capable of making conservatism relevant to ordinary working people. They have nothing of an affirmative agenda. They are agents of outrage and that’s it. 

I rarely write in the first person at The Hub so as to convey a sense of dispassion and detachment. It’s hard for me to maintain that tonight. I was attracted to conservatism as a young person because I thought its understanding of the world was good and right. Its emphasis on the dignity of individuals, respect for tradition and long-standing institutions, and recognition of the deep complexity of the economy and society provided a strong philosophical framework for thinking about old and new problems. 

I don’t see any of that in this leadership result. Instead, I see a scared and angry minority that doesn’t define itself based on what’s good and right but rather by a sense of embattlement and opposition. 

The short-term cost of their political paroxysm is the best conservative premier in the country. The longer-term cost may be to the character of Canadian conservatism itself.