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VOL. 80 PART 2 MARCH 2022
little more to lose on the marketing front, and be less cautious in putting
judicial independence to a complete end.
There are also other questions about what impact the resignation of a single
overseas NPJ at a given point in time might have. If an overseas NPJ
were at the point of believing that judicial independence is under severe
threat (arguably warranting some public communication of that via resignation)
but also that there remains some potential improvement to be
achieved by continuing to work within the system, they might consider
whether their resignation will garner sufficient attention to make it worth
forgoing the potential benefits of staying. One might be somewhat skeptical
that one judge leaving the HKCFA will put much if any dent into the public
relations upside that China is getting from, for example, having hosted the
Winter Olympic Games with a partly admiring international audience.
The considerations that go into when to serve as a judge in another jurisdiction
are complex. Beyond the framework provided above, relevant factors
may include personal factors (such as the travel concerns cited by
Hale). There may be further complications if the judge continues to sit on
a domestic court rather than (as in McLachlin’s case) taking on the foreign
appointment only after their domestic role concludes.
We can only wonder how many of the overseas NPJs on the HKCFA
regret having taken the role, with the burdens it has brought, including the
challenges of deciding whether the right course now is to resign or not. This
said, given their storied careers, it may be that while regretting the National
Security Law (and realizing they may not be called upon to adjudicate much
if at all specifically in relation to it17), some relish the opportunity to deal
with the challenges that the current situation in Hong Kong presents, and
to make a positive difference through whatever decision they make.
ENDNOTE
1. Alex Robinson, “McLachlin Appointed to Hong Kong
Court”, Canadian Lawyer (23 March 2018), online:
<www.canadianlawyermag.com/news/general/
mclachlin-appointed-to-hong-kong-court/275017>.
2. “Foreign Judges Will Remain Part of Hong Kong’s
‘Hard as a Rock’ Judicial System: Carrie Lam”,
Channel News Asia (8 June 2021), online: <www.
channelnewsasia.com/asia/foreign-judges-willremain
part-hong-kongs-hard-rock-judicial-systemcarrie
lam-1841161>.
3. Aidan Macnab, “Benchers Bring Motion to Call on
Beverley McLachlin to Resign from Hong Kong Court
of Final Appeal”, Law Times (25 February 2021),
online: <www.lawtimesnews.com/resources/profes
sional-regulation/benchers-bring-motion-to-call-onbeverley
mclachlin-to-resign-from-hong-kong-courtof
final-appeal/338176>. The quoted bencher,
Jonathan Rosenthal, has noted, “We have to recognize
who Beverley McLachlin is, the important role
she played as a jurist in Canada” and “if she came
to the conclusion that she couldn’t make independent
and correct decisions, I’m very confident … she
would take the appropriate step and resign”: Tom
Blackwell, “Canada’s Ex-Chief Justice Renews Job on
Top Hong Kong Court Despite Beijing’s Tightening
Grip”, National Post (2 August 2021), online:
<nationalpost.com/news/canadas-ex-chief-justicerenews
job-on-top-hong-kong-court-despite-beijings-
tightening-grip>.
4. “Call for Former Chief Justice Beverly McLachlin to
Step Down from Hong Kong Final Court of Appeal”
(13 December 2021), online: <www.tadc.ca/callfor
former-chief-justice-beverly-mclachlin-to-stepdown
from-hong-kong-final-court-of-appeal/>.
5. The phenomenon of foreign judges (and reasons for
their appointment) has been the subject of recent
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