Criticism of the courts and judges:

BY Hearsay

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Informed criticism and otherwise [1]

Speech by The Honourable Chief Justice Geoffrey Ma at the 2018 Supreme Court of Queensland Oration

21 May 2018

Brisbane, Queensland

1. It is a singularly grand honour to be asked to deliver this year’s Supreme Court Oration. When Justice Glenn Martin extended the invitation to me in February last year, I was overwhelmed and had no hesitation in accepting. This Oration has had many distinguished jurists precede me. It is an intimidating thought. The Chief Justice of the High Court of Australia delivered the Oration last year[2] and she will in a few days’ time deliver here in the Banco Court the Australasian Institute of Judicial Administration Oration. [3] I am, however, much comforted by the thought that I am among friends, many of you old friends and that I have also had the pleasure of speaking here before. [4]

2. The topic of criticism of the courts and of judges is not a new one. People have been making criticisms for a very long time. In his stimulating book “Judges”, [5] in the Chapter headed “Criticism”, David Pannick [6] refers to the case of Serjeant Roo who, in 1527, composed a satire performed in Gray’s Inn on the abuses of the law for which Cardinal Wolsey, then the Lord Chancellor, was said to be responsible. Roo was summarily imprisoned. The relevant context at that time (the early 16th Century) was many thought that judges were amenable to undue influence; the fact that Sir Thomas More was praised for not accepting gifts implicitly suggested that other judges were perhaps not quite so unblemished. [7]

3. Criticism of judges, specifically of court decisions, continues to this day. You will all no doubt be familiar with the reaction of one of the popular newspapers in the United Kingdom in 1987 following the Spycatcher litigation in the United Kingdom, when the House of Lords upheld an injunction preventing the publication of the memoirs of a former MI5 agent [8] when they had already been published in other countries. [9] Upside down photos of the Law Lords under the banner headline “You Fools” appeared in the newspaper. More recently, again in the United Kingdom, after the decision of the English Divisional Court in the Miller case, [10] there were startling headlines directed against the judges of the Divisional Court. [11] This was a case not only of immense constitutional importance in the United Kingdom, it also had political consequences over which many people held extremely divergent views. Whichever way the case was decided, the outcome in the courts was always going to be controversial between the soâcalled Brexiteers and those who wished the United Kingdom to remain in the EU.

4. Hong Kong has not been immune either. In recent times I have been personally attacked as well, called evil, incompetent, a person who deserves no respect and a person “dressed in a silly bib”.

5. The criticism of courts and judges raises some fundamental dilemmas that are not easy to resolve and it is some of these dilemmas that I want to explore. They are easier to identify than to resolve. The difficulty lies in the fact that reasonable points of view do often proceed from diametrically opposite positions and finding some middle ground, if there is any, is often extremely hard. On the one hand, there is an imperative to uphold and maintain the dignity of the law and the necessary respect for it. This is symbolised in most statues of justice we see in almost every court around the world. The statue of Themis, with her right hand holding a sword as a sign of the authority of the law, stands outside these very courts. She stands atop the Court of Final Appeal Building in Hong Kong. [12] Nonetheless, against the authority of the law, and just as important, is the freedom of speech. Here, I wish to be clear: I am not suggesting that the judiciary, courts and the work of the courts should in any way be immune from free speech: there is no reason why they should be in any way and indeed free speech often benefits the administration of justice.

6. A tension inevitably exists between these two facets. The freedom of speech, though a fundamental right, is not unlimited. In Australia, the freedom of speech (or discussion) is regarded as essential to sustain the system of government that is constitutionally mandated and is accordingly to be regarded as effectively entrenched as a constitutional right. [13] It is, however, not absolute. [14] In Hong Kong, it is stated to be a right enjoyed by residents of Hong Kong: see Article 27 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China. [15] Under Article 39 of the Basic Law, the provisions of the International Covenant on Civil and Political Rights are to be implemented and the Covenant has legislative force in Hong Kong through the Hong Kong Bill of Rights Ordinance. [16] Article 16 of the Bill of Rights guarantees the freedom of expression but states, as does the Covenant, [17] that the exercise of this freedom carries with it special duties and responsibilities:-

“It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary —

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.”

For example, laws against hate speech and the law of defamation provide clear instances of legitimate restrictions to this freedom.

7. I shall go into the limits of free speech regarding judges and the courts when dealing with the form of contempt of court known as scandalising the court. Of more interest, however, is looking more closely at the concerns or problems that may arise when the exercise of free speech results in a distortion over what the rule of law means in a society. It is this aspect that can give rise to real concern because if the rule of law itself, involving the concept of the administration of justice, is misunderstood, then the confidence of the community in the institution of the law — represented by the judiciary whose authority is symbolised in solid form by the dignity of our court buildings and statues of Themis — will be damaged. However lauded a court system is and however well it works, the absence of confidence in the system seriously undermines the rule of law and this in turn undermines society itself. A wake up call is, in these circumstances, necessary.

8. But before I discuss this aspect further, I must first say something about the offence of contempt by scandalising the court. I do not intend what follows to be a definitive or complete analysis of this form of contempt. Only a thesis would do the topic justice. I want, however, to say something about the offence in order to highlight the two facets of the freedom of speech and the administration of justice.

9. This offence is a curious one because it is just so controversial owing to the collision it has with the freedom of speech. As I have said earlier, this right is a constitutionally protected one but even where it is not constitutionally protected, it is fiercely guarded and rightly so. The controversy is further fuelled by the fact that in some jurisdictions, this offence has been abolished. It was abolished in the United Kingdom in 2013. [18]