16 September 2019
Hong Kong's proposed revision of the extradition law has prompted even some judges to voice their concerns, albeit anonymously, to the media. Photo: Reuters
Hong Kong's proposed revision of the extradition law has prompted even some judges to voice their concerns, albeit anonymously, to the media. Photo: Reuters

Should judges comment on the Fugitive Offenders Ordinance?

With even some local judges voicing concern, albeit anonymously through the media, over planned changes to the extradition law, the government’s legislative push has created a political firestorm even more ferocious than the controversy that erupted in 2003 in relation to proposed enactment of a national security law.

The judges’ remarks on the law change, as quoted by the media, have drawn the attention of their superior — Chief Justice Geoffrey Ma Tao-li — who later weighed in on the matter by stating that based on the principle of judicial independence and impartiality, judges should avoid commenting on political or other controversial issues.

In particular, Chief Justice Ma said that judges should refrain from commenting on legal issues which may need to be handled by the court soon.

Meanwhile, Chief Secretary Matthew Cheung Kin-chung has also raised doubts over whether it is appropriate for judges to publicly express their views on the issue in this way.

First things first, I believe it is important for us to bear in mind that the proposed amendments to the Fugitive Offenders Ordinance are still by nature a legal issue right from the start, although the entire saga has snowballed into a political crisis.

And that brings us to the next core question: is it really inappropriate for judges to comment on political issues or express their views on jurisprudence in public?

In fact it has remained a highly controversial and hotly debated topic that dates back to centuries. And even up to the present day, there is no consensus or conclusion among society over the question.

Some people argue that judges should be allowed to comment on political and legal issues because they are, like us, also humans, and are therefore as much entitled to freedom of speech as everybody else.

Yet at the same time, there are also some others who believe that judges should remain tight-lipped about social and political issues at all times, because otherwise it may give rise to a public impression that they are biased, thereby undermining the impartial, fair, independent and professional image of the judiciary.

Although there seems no end in sight for this never-ending debate, the reality is, over the years judges in Hong Kong have often expressed their views on political or legal issues, not through the media, but through the court rulings they deliver.

One notable example is the 2017 verdict delivered by Court of Appeal judge Wally Yeung Chun-kuen on the so-called “civic square case”, in which he referred to the rising tide of civil disobedience actions in the name of pursuing just causes as “an unhealthy wind”.

Undoubtedly, Judge Yeung was commenting on political issues in his ruling, and he did come under fire from society afterwards for being allegedly biased against pro-democracy protesters.

Nevertheless, in a subsequent verdict that overturned Yeung’s decision, the Court of Final Appeal only criticized that his arguments didn’t constitute proper sentencing basis, but didn’t specify that judges of lower courts shouldn’t give their own views in their rulings.

In other words, it is indeed okay for judges to express their opinions on political and legal matters through the court verdicts they deliver in the course of carrying out their official duties.

But the debate doesn’t end here, because it leads us to another fundamental question: should judges comment on political and legal issues on occasions when they aren’t performing their official duties?

According to the current Guide to Judicial Conduct published in October 2004, “judges must do their utmost to uphold the independence and impartiality of the judiciary and to maintain the dignity and standing of the judicial office.”

And “the perception of impartiality is measured by the standard of a reasonable, fair-minded and well-informed person.”

As such, judges should avoid behavior or remarks that could undermine that public perception of impartiality.

Such behavior includes joining any political organization, or having any political affiliation, as well as taking part in politically related rallies and protests.

Nonetheless, judges are fully entitled to the right of casting their votes in public elections just like we are.

So what about commenting on politics or existing legal loopholes outside the court?

First, I believe most judges would rather not remark on politics in public, although the Guide to Judicial Conduct doesn’t prohibit them from doing so.

Second, as far as commenting on legal loopholes and legislative policies outside the court is concerned, the city’s judges, and even Chief Justice Geoffrey Ma himself, are already doing so quite frequently on occasions such as the annual ceremonial opening of the legal year, as well as in their capacity as members of the Law Reform Commission.

At the end of the day, I believe the main reason why the idea of judges publicly commenting on the Fugitive Offenders Ordinance doesn’t sit well with the Chief Justice is that since the proposed law changes are currently under scrutiny by the legislature, judges should avoid talking about it in accordance with the principle of the separation of powers.

And vice versa, under the same principle, the executive and the legislative branches should always avoid commenting on any ongoing court case.

This article appeared in the Hong Kong Economic Journal on June 6

Translation by Alan Lee

[Chinese version 中文版]

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HKEJ contributor