(Editor’s note: this is a lightly edited excerpt of remarks by former Chief Justice Geoffrey Ma delivered at Gray’s Inn’s webinar on March 9.)
Thank you, Master treasurer. It's a great privilege to be in this breakfast seminar. In my few minutes, I just want to talk about as a theme, standing up for the rule of law and the independence of the judiciary, particularly in the face of public criticism.
Now, as we have heard, the rule of law has two important connected components. First, the recognition. Not only that the law is there to govern the interrelationships and interactions between members of community, both personal and commercial, but also to protect individual rights and freedoms that define the dignity that should be accorded to people. This can be expressed as an acknowledgement of the rights of the individual, coupled with the respect for the rights of others in the community.
Secondly, the rule of law requires an independent judiciary. Neither facet is a political concept, but both have as their foundation, equality before the law - this being the starting point of justice, which is the point of justice itself.
But how many people who speak out on the law, on the work of the courts and judges, really understand us and who has the responsibility of informing those, we take an interest in the law of the true meaning of the rule of law?
It is commonplace these days for criticisms to be made of judges and the work of the courts, particularly those arising from cases involving politics. Hong Kong provides a ready example in recent times. See the cases involved in the social unrest of 2019 and even the national security law. Criticisms range from abuse, or even doxxing (I’ve been subject to that) to informed constructive criticism. Neither of these extremes poses real problems, judges can deal with abuse.
The type of criticisms that cause difficulty has been the type of criticism that's made without any real basis, other than a mere dissatisfaction with the outcome of a case. The criticism almost invariably involves accusations, direct and indirect, of judicial bias. And this, of course, goes to the heart of the judicial process, the independence of the judiciary, and ultimately to the rule of law itself.
For example, in Hong Kong, in the cases usually criminal ones just described, such cases are invariably loaded with political tensions between those who support protesters, for example, and those who do not. Politics and geopolitics do cause deep and heated divisions. You can well imagine the reactions and emotions that are generated when there is a conviction or an acquittal.
This is where the type of unfortunate criticisms to which I've referred just referred as made, it is often made not just by interest groups, but also by members of the public politicians, the press, and even some lawyers. When the origins of the case involve politics of whatever persuasion, the accusations then levelled against the judiciary becomes, as I've said, based on bias, and in particular political bias. This is a matter of great concern.
Every community is entitled to expect and take for granted an independent judiciary. And quite simply, when this is placed in doubt, the rule of law itself is undermined. It is crucial to understand that the concept of independent judiciary does not involve the courts or their work be involved in politics.
Courts and judges discharge only judicial functions, and do not involve themselves in politics, much less wield any form of political power.
Judges are required to be completely apolitical in the discharge of their duties. This is not just desirable, it's a constitutional imperative. The duty of every judge is only and simply to administer the law. This means dealing with cases strictly in accordance with law. With no extraneous factors such as politics, influencing the result, there can be no question of bias, arbitrariness and bias are the opposites of acting in accordance with the law. Were this not so, this would certainly impinge on the guarantee of equality.
Confidence in a legal system of any given jurisdiction is essential. Without such confidence, the law does not fulfil its primary function and falls into disrepute. Therefore, these concepts of dignity, human rights, respect to the rights of others, equality, an independent judiciary, the administration of justice, all matters we have in the past, almost completely taken for granted, must be reinforced by those who are involved in the law in order to foster this confidence.
Of course, the judiciary and the judges are intimately involved, but it is often inappropriate for them to speak out. This leaves the Bar, and other lawyers, including academics, who I believe have the duty to stand up for the rule of law, and with the independence of the judiciary. It is incumbent on them to explain what this means, and also to point to objective, empirical facts and factors to demonstrate its existence in any jurisdiction.
But the list of interested persons does not end here. The importance of the rule of law should also be apparent to the other branches of government, namely the executive and the legislature. They too, must accept that the rule of law must not be confused with politics and play their part in respecting and supporting it. Thank you.
(Question from host: what should be the role of the Bar?)
It is important that the Bar speaks out in a form of education, in a way because there are many people in the community who don't really understand what the rule of law means, but take an interest in it because it is a term that is banded around, particularly by politicians, and by the press in a political context.
Where the Bar comes in, and this is an important role it plays, is not to be political itself. I mean, once the Bar is is seen to be political or is political, meaning it takes sides, then it loses much of its credibility and effect. So where the Bar comes in, I think, is in explaining to people what the rule of law is and to speak out when there are those sorts of uninformed criticisms, which are made. I'm not talking about abuse, abuse is easy to deal with. I'm talking about where there are allegations of bias on the part of courts in coming to decisions.
(Question on disobeying unjust law)
This is a question of whether you can as a matter of morality, disobey laws. It's a complicated question, simply because there's no one right answer. But I would follow what Peter has just said- it can get extremely political, and in Hong Kong, the recent experience has been that many of the people who talk about the moral duty to disobey laws often talked from a political point of view.
When you're looking from a legal point of view....Helen says, well, the common law has the answer, but the common law has this experience. Follows from what Peters has just said, is that when you talk about freedoms and rights, it's very easy to identify them. But also, there are rights and freedoms, which are also legitimate, but pull in an entirely different direction. Peter gave this example of impinging and affecting one's freedoms and human rights, in the name of public safety, where you have the rights of others to consider. Now these are legitimate considerations. But they pull or can pull in diametrically opposite directions.
How does one actually then arrive at a suitable balance, I guess, governments or legislators tried to do that. But if they don't succeed in doing that, the buck then rests with the courts. And this is where on the theme that we've embarked on in this seminar. This is where the independence of the judiciary is crucial, and not to be marred by any form of interference or political considerations.
(Question from host: Is there a feeling of an attack on the independence of the judiciary in recent years by the press?)
There certainly is in Hong Kong. I have detected, certainly in the past a year, in the past few months, even. Extreme pressure. Not on the judiciary, because strong views are given by the press, depending on which political end of the spectrum they belong. And they are fiercely critical of judges, even to the point of abuse.
Where decisions go against a certain political leaning, there will be calls for the reform of the judiciary, in the basis that, look, the judiciary is just not doing its job. Judges need to be more with it, they can't be trusted to do their work. Now, in many years gone, there may be a calls for contempt of court action. But that is not the way these days [are handled], given the freedom of expression, and so on. But a lot of these things can't be left unanswered. And this is where the Bar needs to speak out. Lawyers need to speak out. The government needs to speak out through the one person who represents the legal aspects or the context of the government. And this is in in England is the Attorney General. In Hong Kong, we call this person the Secretary for Justice, up to that person on behalf of the government to speak out. And of course, this is what I mean by speaking out for the rule of law because this is a sort of criticism that does actually undermine confidence in it from the ordinary man in the street, who takes an interest in this.
(Question from host: should the judiciary always decide which judges decide which cases without interference from the executive?)
Could I say something here? Because this question is of direct relevance in Hong Kong, and there's been a lot of talk in relation to this, and specifically under our National Security Law.
The National Security Law is a law which came from the National People's Congress- didn't go through the Hong Kong legislature or the usual Hong Kong channels. One of the many provisions in this law is the designation of judges, which is controversial. Because this is where the executive, after consultation with the Chief Justice will designate judges to hear national security cases.
The theory behind that, presumably, is that in matters of high level national security, then the executive needs to be sure that there's a right judge for it. But that said, you could leave that to the judiciary to determine who's the right person or not the right person to hear such cases.
Of course, the judges are to be designated from the existing pool of judges. So that is, I suppose an important protective measure to ensure that justice is done or seem to be done.
But many people regarded [that] as mighty odd, because the question which Master Charles Haddon-cave had asked, is whether your listing is an important part of the rule of law? And it is, the answer is yes. Because that is part of the independence of judiciary to decide for itself, which judges will hear the case and not have somebody else whose angle or particular context, may well be political or other interested aspect of it.
So this is an important question, as far as Hong Kong is concerned, where you had the strange provision of the designation of judges. It's very important. The other safeguard, of course, is the consultation with the chief justice. But I mean, there we are. But, you know, we have that provision in Hong Kong.