It is a fact that the deference traditionally given to judges has been eroded in the past twenty years or so. I am not just talking about Hong Kong. Judges have been severely criticised and attacked occur in other jurisdictions.

I choose two recent cases, one from the U.S.A. and the other from the U.K.

In February 2017, early on in President Trump’s term of office, U.S. District Judge James L. Robart ordered a stay of the President’s Executive Order concerning immigration and travel from mainly Muslim countries, the President tweeted that the judge’s decision was “ridiculous” and he disparaged Robart personally by calling him a “so-called judge”.The President was buoyed in making this attack on the judge because his new tough policy was very popular with those who voted for him.

A few months earlier, in November 2016, three High Court judges in England & Wales ruled against the government on its plan to take the U.K. out of the European Union bypassing Parliament. There was then-but not now- considerable popular support for ‘Brexit’.

The Daily Mail newspaper, traditionally a strong supporter of the Conservative party, published colour photographs of the three judges on its front page next to the politically loaded headline ‘Enemies of the People’. The accompanying story described the popular ‘fury’ that had arisen because ‘out of touch judges’ had ‘defied’ over 17 million voters who had voted in favour of Brexit.

The accusation that the judges were ‘out of touch’ seemed to have some substance because the photographs of the judges showed them wearing their red robes and long curled wigs. The more cerebral Daily Telegraph contented itself with black and white photographs of the judges against the headline ‘The judges versus the people’. Other newspapers also joined in the attack.

The US President’s attack on the District Judge prompted the head of the American Bar Association to condemn the remarks by saying, “Make no mistake, personal attacks on our judges are attacks on our constitution”. He also pointed out that there were ‘no “so called” judges in America. There were ‘simply judges, fair and impartial’.

In the UK lawyers condemned the attack on the judges and looked to the government to follow suit. Strangely, the government’s own justice minister said nothing meaningful about the attack, leading the chairman of the English Bar to say that the cabinet minister had a duty to uphold the rule of law and that duty meant that she had to speak out on the issue as she embodied the ‘conscience of the government’.

The lack of a response by the justice minister led to the unusual step of the outgoing President of the Supreme Court, Lord Neuberger, giving a television interview in February 2017, after the Brexit litigation had ended with defeat for the government, saying that the criticisms of the previous year had undermined the judiciary and had weakened the rule of law.

This step was unusual because serving judges do not enter into a public debate about their judgments for fear that it diminishes public confidence in their independence.

Retired judges might come out to repudiate criticism made against their former colleagues. They are no longer serving judges but they have valuable insights into judicial decision-making and so can speak with some authority. Their defence will usually be enough. Lord Neuberger speaking out on this occasion indicated that more was required in this case.

I am not going to argue that whatever judges say must be immune from criticism. The days are long gone when judges could hope to expect automatic deference to what they said and did. In a society that is free, some criticism of the judiciary is inevitable.

It is inevitable because judges make decisions affecting society in every way as important as decisions made by the executive or the legislature. If the decisions are controversial, criticism will surely follow. The criticism may be wrong-headed, mistaken and disagreeable but, so long as it is not intended to affect the course of active proceedings or be threatening to the judge concerned, it is lawful.

Judges operate at a disadvantage here. In a world where people expect that information will be available on demand, the media encourage instant and dramatic responses to events. But the judiciary does not have a Facebook mentality.

Judges may seem slow and ponderous to many people in their decision-making and therefore remote, but that is because the discipline of the law requires considered analysis and carefully-crafted judgments, not spin and tweeting. Besides, for the reasons given above, judges cannot engage proactively with their critics.

Where criticism of judges goes beyond fair comment and attacks their independence as in the cases outlined at the beginning of this piece, the job of defending falls to bar and law associations. They will either speak up on their own as in President Trump’s case where the attack came from the executive or will chime in with government disapproval of attacks, chivvying the responsible persons in the government if they are too slow about mounting a robust defence, as in the Brexit case.
When a bar or law association has to act in this way the damage has already been done. It is much better that no intervention is necessary. The solution lies in education and better political respect.

The Judiciary can educate the public by making important judgments accessible. This is happening now. Court of Final Appeal judgments are inevitably accompanied by accurate summaries and references to the written arguments of the opposing parties. Other judgments are also written with accessibility in mind. This means that there is no excuse for misunderstanding or misreporting what judges have decided.

Both the executive and legislative branches of government need to be reminded of their separate functions under the constitutional arrangements set out in the Basic Law and of the need to respect the judicial arm.

If a judicial decision seriously disappoints the executive, it should appeal the decision and resist making any statements that appear to criticise the judge.

In the legislature, judicial decisions must also be respected also, even if it means that laws need to be amended or policies overturned.

More important than reminders to the branches of government about the separation of powers is civic education.

Many adults do not need such reminders because they have never been taught what a judge does in the first place. It may be too late to teach them but young people may yet learn through education and the media.

They need to know that judges do a difficult job. They apply the law equally, without fear or favour. Personal inclinations and prejudices do not come into it.

Oftentimes judges’ decisions will conform with widely-held social expectations but sometimes they will not. Then there is disappointment, or even outrage, if an individual or a minority obtains some legal benefit that it is felt that they do not deserve.

If judges are routinely attacked over such decisions the effect is very discouraging. Just over twenty years ago, in 1997 the Chief Justice of Australia, Sir Gerald Brennan, made a speech entitled ‘The State of the Judicature’. He remarked in the speech on the corrosive effect of unwarranted attacks on judges’ morale

The respect for, and status of, the office of a Judge was and, to a great extent, still is an inducement to accept judicial office. But it is clear that intemperate and ill-informed attacks on particular members of the judiciary, the trumpeting of criticism by commentators who have little knowledge of the judicial method and the absence of effective defence of judicial institutions by the political branches of government have damaged that respect and status to some extent. I shall refer to these factors in connection with public confidence in the judiciary. In the present context, the significance of these developments is that it becomes more difficult to attract practitioners who value both their reputation and their privacy.

The Chief Justice made a good point. It was picked up a few years later by the late Lord Bingham, a former Lord Chief Justice of England & Wales and Senior Law Lord, in a speech on the future of the Common Law.

It was hard enough, he said, to persuade talented practitioners to sacrifice high earnings in private practice and become judges without unwarranted attacks. With such attacks and attendant newspaper publicity, why should they bother? He foresaw that if the very best practitioners were not prepared to make the transition, there would be dire consequences

“If the bench were to become the refuge of the mediocre, the unambitious the timid and the unsuccessful or if the appointment of judges were to be blighted by a search for the safe, the conformist and the representative I have no doubt the quality of justice would suffer and respect for the law decline.”

In order not to have supine or indifferent judges making decisions affecting us all we all need to defend the judges against groundless attacks. That means understanding what judges do and being measured in our criticism of them when their judgments fall rightly to be criticised. If we do not do that, we may end up with the judges Lord Bingham feared that might be appointed and that will be no more than we deserve.

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About the author
Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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