174 THE ADVOCATE
VOL. 80 PART 2 MARCH 2022
foreign judges to convince potential investors, litigants and other observers
(both foreign and domestic) that its judicial system is sound and that they
may deal with it safely is not necessarily nefarious. Where the appointing
jurisdiction is in fact upstanding and the problem that it intends to address
by appointing foreign judges is simply of perception, not reality (i.e., where
a country has an undeserved reputation for having a poor judicial system,
but it is actually very good), the presence of foreign judges may serve everyone
well by inspiring the confidence that was (with or without them) truly
warranted. Where the appointing jurisdiction is not in fact upstanding and
seeks to use the presence of foreign judges simply as cover to disguise the
frailties of its judicial system, that is another matter.
Against the backdrop of the National Security Law, some commentators
who adopt the Canary-in-the-Coalmine Approach have been particularly
critical of those overseas NPJs who do not resign and who accept re-appointment.
In the eyes of those critics, overseas NPJs who remain simply provide
the Chinese government with “cover”.
Of course, this criticism would be unfair even vis-à-vis an overseas NPJ
who is a wholehearted proponent of the Canary-in-the-Coalmine Approach
as long as that judge actually believed the judicial system remains independent.
From that perspective, their resignation would send the wrong signal,
of the presence of poisonous gas in the mine where in fact there is little
to none. Concerns about overseas NPJs wrongly undermining confidence in
the independence of Hong Kong’s judicial system by resigning may in part
have driven the Hong Kong bar to ask overseas NPJs not to resign.14
As far as we know, McLachlin has good reason to believe that the HKCFA
remains independent. In January 2022, The Globe and Mail reported her
comments that “the Chief Justice assures me that the Court is independent
and that he is assured by the Chief Executive that this will continue”.15
This seems to be consistent with her experience. Further, clearly she is concerned
that resignation would unfairly sap confidence in the judicial system,
and hurt it by doing so. McLachlin has noted: “Whatever the situation
on other fronts may be, I believe I should do nothing to undermine the
Court, so long as it remains independent. We need to cherish such democratic
institutions as we have, not abandon them.”16
In addition, as long as there are overseas NPJs sitting on the HKCFA, perhaps
their presence provides an element of deterrence to the Chinese government.
If it does wish to maintain the marketing benefit of having
overseas NPJs on the HKCFA, it likely knows it can only go so far in undermining
the judicial system. If all overseas NPJs were to resign and no foreign
replacements could be attracted, the Chinese government might have