Who shall judge the judges?

Neville Sarony May 30, 2022 06:00

Seven Republican congressmen in the USA have called for judges hearing cases of alleged National Security Law offences and those prosecuting such cases, to be sanctioned as part of ‘more rigorous and lasting measures.’

A spokesman for the judiciary has described this as ‘a direct infringement on Hong Kong’s rule of law.’

It is correct and imperative that any form of criticism of Hong Kong’s judiciary should be damned. Any informed commentator knows that the judiciary in common law jurisdictions do not engage in self-defence, consequently attacks of this nature are cowardly.

But, what these congressmen say has no legal effect whatsoever on the rule of law in Hong Kong. They can fulminate to their hearts’ content, to coin a phrase, they are passing wind against thunder, it does not impinge on Hong Kong’s legal system.

Let us address the heart of the issue: liberal democracies permit criticism of judgments and of the decisions of judges. However, what these congressmen are doing falls outside the legitimate ambit of commentary on judiciaries.

Presumably, in their opinion the provisions of the National Security Law conflict with the basic tenets of the liberal rule of law. One can only surmise that these lawmakers labour under the misapprehension that sanctioning NSL designated judges will effect a change.

That only demonstrates how divorced they are from real politik.

On being appointed, judges take an oath to uphold and administer the law. Failure to do so would breach that oath.

Whether a judge approves or disapproves of a law, he or she is duty bound to maintain it.

In an extreme case, judges can always resign their office if they no longer feel that they can, in all conscience, administer a law with the provisions of which they disagree profoundly.

In practice, judges may try to temper the worst effects of a law which they regard as unfair or unjust.

Yet it is the legislators who pass laws and, once in power, make whatever rules they desire, no matter how whimsical or patently unjust.

In England, since the time of Magna Carta it was the law that a person charged with a criminal offence had an absolute right to remain silent, reserving their defence until trial.

Then in the sneaky way that politicians corrupt the law, this right of silence was qualified by parliament so that the person arrested is told that he can remain silent “but it may harm your defence if you do not mention when questioned something which you later rely on in court.”

When I was a Recorder of the Crown Court, I explained this to the jury but I usually put it in context, reminding them that previously there had been an absolute right of silence.

People need a sense of history if they are to see things in perspective.

So, what can one say about the American legislators’ blanket criticism of those Hong Kong’s judges designated to hear NSL cases?

An individual judge might argue that when he or she took the oath of office the NSL was not operative and therefore it fell outside the ambit of their oath. The problem with that is that the law is constantly undergoing change and the oath remains operative.

In countries with a written constitution, a judge is entitled to hold that a particular legal provision is unconstitutional and can rule that it lacks legal legitimacy.

Each legal provision has to be measured against the rights that are enshrined in a constitution.

This is common practice in the United States and Ireland.

It is easy to understand that it requires a brave judge lower down in the judicial hierarchy to make such a declaration. Consequently, such decisions are more often taken in Appeal Courts.

Having been imposed on Hong Kong under the inherent sovereign power of the PRC, the NSL is prima facie constitutional and its provisions have not yet been measured against the Basic Law in the Court of Final Appeal.

Which being the case, the American legislators’ criticism is not only ill-conceived by precipitate.

Yet, no matter what the Court of Final Appeal may decide, any interpretation is subject to the inherent sovereign power of the central government to declare the NSL as it sees fit. The Court of Final Appeal does not have the final word.

In this respect it means that the ultimate power of interpretation lies with the central government in the exercise of political rather than jurisprudential judgment.

There is a compelling finality to this which makes any judicial divergence from the letter of the NSL superfluous.

That said, many of the provisions of the NSL are as nebulous as a passing cloud and would lend themselves to interpretation in accordance with common law principles.

Furthermore, if the leaked judicial opinion of the US Supreme Court is accurate and it is about to overturn Roe v Wade, the integrity of that court’s jurisprudence will be cast into the gravest possible doubt.

Would these same congressmen argue that the dissenting judges resign and leave the SupremeCourt in the hands of men of straw?

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Neville Sarony

King's Counsel