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Thank you Dept. of Justice, but Hongkongers will decide for themselves whether the judiciary is independent

What has got into the Department of Justice, one wonders. The department is the government’s adviser on all legal matters. It is stuffed with lawyers. The public is entitled to expect that statements issued by the department will be lucid, coherent and legally accurate.

Now consider this:

“The DoJ reminds the public to respect the rule of law and judicial independence, the latter being one of the most important facets of the rule of law…. Whilst members of the public is entitled to, within the permissible legal boundaries, to express one’s opinion rationally or engage in informed discussions about the court’s decision and related matters, this has to be done within the limit permitted by the law and with respect for judicial independence. Personal or scandalous attacks or insulting comments on judges or acts undermining judicial independence or in contempt of court are absolutely forbidden.”

The Department of Justice.

The Department of Justice. Photo: GovHK.

It is a fair bet that this was rushed out in some haste. Members is entitled to, to express one’s opinion, indeed. Writers is advised to to read through one’s work before publishing it!

We start, though, with an elementary confusion. Judicial independence is indeed an important facet of the rule of law, but respecting one does not lead automatically to belief in the existence of the other.

Citizens of a society which aspires to the rule of law have an obligation to respect the law, and they do this by obeying the law, even if no police officer is watching at the time, and even if they disagree with the law concerned.

Belief in judicial independence, on the other hand, is a factual matter, not a moral obligation. People form their beliefs about the degree of judicial independence in society by watching the performance of judges. If judges are consistent and impartial then we conclude that they are independent. And if not, not.

West Kowloon Law Courts Building

West Kowloon Law Courts Building. Photo: Kris Cheng/HKFP.

The DoJ’s anonymous author has borrowed this error from the Chief Executive, who also supposes that the way to foster judicial independence is to express belief in it, without reference to whether in any particular instance that belief is justified.

The problem which some people have trouble getting their heads round is that judicial independence is not an on-off switch. In most cases it comes effortlessly. Mrs Chan’s desire to divorce Mr Chan, or Superb Investments Ltd’s bid to get its money back from Ponzi Projects Inc, find the judicial mind in a state of impeccable impartiality.

On the other hand when senior government officials, and their puppet masters in the Liaison Office, have expressed a strong view in a particular direction, then judges – who look rather like senior officials from a distance – come under close and sceptical scrutiny.

This is not an attack on judicial independence. It is an attempt to defend it from those, like our colonial masters, who regard it as an inconvenient piece of grit in the machinery of smooth authoritarian government.

Now, having struggled past the nonsense sentence we come to the heart of the matter. Discussion of judges’ decisions must be conducted within the law. Well so say all of us. If possible they should also be polite and rational. But what does the law require?

Geoffrey Ma

Photo: GovHK.

We are offered a list of items which are “absolutely forbidden”. This is a strange mixture. “Personal or scandalous attacks or insulting comments on judges,” are the first item. And this is clearly not true. Judges as such have no more protection against personal attacks or insulting comments than the rest of us. This was, indeed, elegantly demonstrated by the storm which broke over the head of the judge in the Magnificent Seven case. Much of this was abuse; some of it was racist. There was much huffing from the DoJ but nobody was prosecuted.

Next we are offered “acts undermining judicial independence”.  But we are talking about expressions of opinion and comment here. These are not acts.

This brings us to “contempt of court”. This is confusing because contempt of court is a very broad concept. So we cannot avoid considering the specific case which has prompted the DoJ to, it says, refer the matter to the police.

This concerns the judge who sentenced the latest batch of fishball riot defendants to what many observers thought were surprisingly long periods in prison. When surprised, observers may well, among other musings, wonder if there is something in the background of the judge which may at some subconscious level have influenced the proceedings.

It turns out that the judge concerned is a widow who used to be married to a policeman. Also, before becoming a judge, she worked in the Department of Justice.

Actually the question what judges were doing before they became judges is a common topic of conversation among lawyers, as long as they are in no danger of being quoted. A background in the DoJ is unusual; the usual complaint is that a judge when in private practice worked in one of those chambers which undertakes a lot of work on the DoJ’s behalf.

High Court

The High Court, Admiralty. Photo: Catherine Lai/HKFP.

The matter of the police husband is a less routine matter. Some observers may find it a bit surprising that the judge concerned agreed to take the case at all, since it was obviously going to centre round the question of whether and to what purpose people had thrown bricks at policemen.

No doubt the judge was confident in her ability to consider the matter impartially and sincerely believes that she has done so. But if there is one thing about which modern psychology agrees it is that we have very limited knowledge of what really goes on inside our heads.

Anyway, the question which remains is this: could discussion along the lines of the last four paragraphs be considered contempt of court so clearly that it is “absolutely forbidden”.

Contempt of court covers a variety of possibilities, most of which can be dismissed quickly. Clearly we are not dealing with contempt in the face of the court, which can only occur inside the courtroom. Nor are we dealing with “strict liability contempt”, or perverting the course of justice, because the trial has finished. Nor is there a question of disobeying a court order.

This leaves us with that interesting antique, “scandalising the court”, which is lawyer speak for being extremely critical of judges. Cases are very rare. In the US the offence has been abolished.

Robertson and Nichol (Media Law – a standard textbook) note that the recorded English cases are of considerable antiquity, and neither would lead to action now. They comprise a 19th century case in which a radical magazine accused a judge of class bias, and an early 20th century one in which a journalist for a similar magazine wrote that a family planning pioneer could not expect a fair trial from a judge who was known to be a devout Catholic.

The only Hong Kong case, which involved the Oriental Daily, concerned a lengthy campaign of abuse, culminating in what could have been interpreted as an attempt to intimidate or punish an individual judge by sending a team of reporters to dog his footsteps.

oriental daily

It must be said that the purpose of this bit of law, as enunciated by our own Court of Appeal in the Oriental case, is not to preserve the dignity or reputation of judges. As Lord Denning put it when rejecting an invitation to punish the author of a piece in Punch, “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it.”

This is a spirit which we could perhaps do with a bit more of. Instead we have the DoJ emitting ill-drafted slabs of legal mumbo-jumbo in an attempt to put the wind up critics of the judiciary.

Respect for the rule of law is an obligation. Belief in judicial independence has to be earned. People who believe that a particular case or judgment is not a shining example of it have a right to say so.

Thank you Dept. of Justice, but Hongkongers will decide for themselves whether the judiciary is independent