When we think about judicial independence in the Canadian context, we usually think about judges’ tenure, judges’ salaries and judicial administrative independence, all of which affect all judges as relevant. Administrative independence can affect the judicial system as an institution, but there are times judges are asked to apply law that they consider fundamentally flawed or when the judicial system is merely one aspect of a morally questionably regime. What should individual judges do in response?
Of course, apart from the three main components of judicial independence in Canada, other issues arise, too, including whether public pressure has threatened independence or even whether executive or legislative action outside the three main components has imperiled the independence of the judiciary. I spoke about the first at the Symposium commemorating the 125th anniversary of the Supreme Court of Canada in September 2000, reproduced in the Canadian Bar Review, with a revised and updated version appearing previously in 2010 in Judicial Independence in Context, edited by Adam Dodek and Lorne Sossin. I referred in my original article and in the updated version to a(n unrealized) proposal by the Mike Harris government in Ontario to publish report cards of judges’ performance in criminal cases (see fn. 9 in the CBR article and fn. 46 in Judicial Independence in Context). I also mentioned in the Judicial Independence in Context chapter that “Prime Minister Harper advised Parliament that the government intended to appoint judges to be “in correspondence with” its objectives of “crack[ing] down on crime” (fn. 6), somewhat similar to the American approach represented by the current Trump nominee to the Supreme Court of the United States, whose views on specific issues are well-known because of her prior writing or commentary. (On broader matters, Judicial Independence in Context is an excellent compendium on relevant issues domestically and internationally, albeit now a decade old.)
Thus there are myriad ways in which judicial independence may be of concern. I want to address a slightly different challenge here, one that individual judges, or those who have been nominated to be judges, may have to resolve for themselves. Should a judge remain on a court when its independence is severely imperiled or when it is compelled to consider laws that are widely considered to be at serious odds with the basic freedoms people are meant to enjoy or when the law becomes a tool of abuse? This question has been in the news lately because some commentators have argued that Canada’s former chief justice, The Right Honourable Beverley McLachlin, should resign from the Hong Kong Court of Appeals because China has imposed a new national security law on Hong Kong that many believe threatens judicial independence. In considering this question, it is hard not to think back to the situation of judges in apartheid-era South Africa.
Although Hong Kong was meant to have certain protections for 50 years under the one country, two systems principle when it was “handed over” to China by Britain in 1997, China has over time and particularly recently, exercised more and more control. When it seemed the Hong Kong government could not control pro-democracy protests, China enacted a new national security law to apply to Hong Kong, as well as to non-permanent residents and people outside Hong Kong. The law was kept secret until it had been enacted. (For a summary of the law see a BBC news report here.) Various aspects of the law raise concerns about judicial independence. For example, according to the BBC report, “Hong Kong’s chief executive will have the power to appoint judges to hear national security cases, raising fears about judicial autonomy” and “Beijing will have power over how the law should be interpreted, not any Hong Kong judicial or policy body. If the law conflicts with any Hong Kong law, the Beijing law takes priority”.
As one law professor stated, “‘Effectively, they are imposing the People’s Republic of China’s criminal system onto the Hong Kong common law system, leaving them with complete discretion to decide who should fall into which system'” (BBC report). As described in a report in The Globe and Mail, the broad application of the law
gives it such broad reach that it could result in the city arresting international scholars who write favourably about Hong Kong independence, politicians who support sanctions against Hong Kong or even groups of Canadian students who provide financial support to the city’s protesters, and could as a result be labelled a terrorist organization. Overseas-headquartered financial institutions that comply with U.S. sanctions against the city could be prosecuted for foreign collusion.
Even before the new security law was enacted at the end of June, China had the right to exercise a certain degree of control over the Hong Kong court. For example, China’s National People’s Congress are able to override court rulings through the mechanism of “interpretations” and have done so on occasion. There was concern that China could undermine judicial independence in Hong Kong and in November 2019,
the foreign affairs committee of the UK’s House of Commons warned that sending British judges to Hong Kong could create a “reputational risk” if the country looks “complicit in supporting and participating in a system that is undermining the rule of law.” The committee recommended the government consult with Canada and other countries who also supply judges to the court (National Post here).
A Reuters story in April 2020, prior to the passage of the national security law, focused on the strain experienced by Hong Kong’s chief justice in trying to maintain the rule of law, at a time when “[t]hree of Hong Kong’s most senior judges told Reuters that the independent judiciary, the cornerstone of the city’s broad freedoms, is in a fight for its survival” (see here).
In addition to permanent judges from Hong Kong, three judges from other commonwealth countries sit on the Court of Final Appeals for specified periods. Justice McLachlin’s three year term ends in 2021. When concerns were expressed about the independence of the court prior to the new security law, the National Post reported Justice McLachlin as having faith in the independence of the court and that the British “fear was hypothetical and in her experience ‘not a reasonable one to contemplate’.”
Since then, however, concerns about the threat to independence of the judiciary in Hong Kong have increased dramatically and Canadians Irwin Cotler, former minister of justice, and David Mulroney, the former Canadian ambassador to China, have urged Justice McLachlin to step down from the court (see here).
What considerations might an individual judge take into account in deciding to remain on or resign from a court when they have concluded that their independence is severely curtailed? There are examples that might prove instructive.
The first question a judge must ask is what message their participation on the court delivers. They must also consider how effective their resignation might be, whether it can bring about change or merely make them feel better. And they must remember that when they are not there, judges who are satisfied with the status quo will likely make no effort to protect the accused’s rights: what is the message received by lawyers who are willing to represent persons charged and perhaps risk their own freedom and by the accused themselves.
An opinion in the Canadian Bar Association’s National focuses on the first question, pointing out while the “foreign judges” on the Hong Kong court may not have to deal with the seriously contentious matters, “they remain an integral part of the Hong Kong system and should keep in mind the broader ramification of their presence” (see here). In short, to what extend does their mere presence lend a perception of the system’s integrity?
The opinion refers to how Australian judges appointed to the Fiji Court of Appeal responded following a coup d’état. Six judges resigned because they did not believe they could perform their responsibilities “‘effectively'”, but others remained, including the chief justice of Australia, who explained the balancing involved in making his decision. He would stay until his appointment to the Fiji court ended, but would not be reappointed by the unelected government.
The South African situation illustrates the role of judges who are required to interpret and apply a system of laws that might be considered disreputable or even morally corrupt even though enacted legally. There the law “defined and enforced apartheid”. (See Tholakele H. Madala, “Rule under Apartheid and the Fledgling Democracy in Post-Apartheid South Africa: The Role of the Judiciary” here.) Madala writes,
The rule of law was among the greatest and most serious
casualties of apartheid. The practice of the law and fundamental human rights were on one side of the system. A decline in the moral fibre of society and a collapse of social values were on the other side. The system created a society in which the majority came to regard the courts, judges, and the administration of justice with suspicion and anger. In the eyes of the oppressed, the system came to represent an enforcement of injustice and a denial of protection. Society reached a stage where it was ready to defy and disobey the law and, in fact, did so. (p. 748)
The judiciary had no authority to review laws, but was required to apply them as given and in most cases did not take the opportunity to make decisions that favoured the defendant even when it might be possible through how they assessed credibility or evidence. As Madala says, “[m]any feel that judges had the power to render the indefinite periods of detention nugatory by refusing to accept as creditworthy any evidence procured during such periods of detention.”
Against the dramatic statement that resigning makes, Madala suggests,
The realistic view is that isolated resignations would have made little or no impact on the system. It was better that the few members of the bench who were sensitive to objectionable state conduct remained as a source of some hope to the accused. (p. 755)
One apartheid-era judge, Richard Goldstone, in a sense symbolizes the two faces of serving in a regime that judge might find objectionable, yet still serves: “He has been critised [sic] for serving under the regime of apartheid and the fact he upheld many racist policies as judge. Many, including the likes of Desmond Tutu, defended Goldstone. They recognised his efforts to curb the worst elements of apartheid legislation in his judgements.” (See here.) (However, Goldstone has also been described as “a man without a moral compass” and “at best intermittently principled” [see here].
A judge may consider that the contribution they can make to maintaining some instances of fairness in the system is worth the risk of adding to the perception of integrity of a system widely considered unjust. Put bluntly, they may be able to salvage whatever remains of the rule of law. A judge with this view may remain until it becomes obvious they can no longer play any role in maintaining the integrity of the system, when the knowledge they may gain about how the system is actually functioning is outweighed by a lack of opportunity “to do the right thing”. From another perspective, staying on a blighted court can appear to provide a false sense of its integrity and, again to put it bluntly, represent collusion with those who have compromised or eliminated the rule of law.
There is an important difference between the judges in South Africa under apartheid and those in Hong Kong, particularly those appointed for fixed terms from other commonwealth jurisdictions to sit part-time. The South African judges were appointed under a system that resulted in an almost entirely white (and male) judiciary who were themselves beneficiaries of governance by the white majority (even prior to the formal institution of apartheid in 1948). (One might compare being a judge under this system to being a judge in Canada under a system that instituted its own reserve system for Indigenous peoples.) The judges in Hong Kong have been appointed and have operated under a system that reflects liberal-democratic processes and values. The system is changing beneath them. Yet do they desert it, leaving it without those who might continue to try to uphold those processes and values when the opportunity arises and to the extent they can? And when that becomes impossible, and assuming they are not replaced by more conforming judges, they must each exercise an ethical decision about whether staying or leaving more closely respects the rule of law.
For someone in Justice McLachlin’s situation, the answer might lie in the model represented by the chief justice of Australia who chose not to make a symbolic gesture, but made his position clear by refusing to accept any anticipatory renewal. Of course, renewal might not be even be in the cards and thus, as with the other foreign judges on the Hong Kong court, the only opportunity to make a statement, empty gesture though it might be, would be now. Each individual judge must decide whether doing so is worth it.