tim's experiment

I was surprised to read of Mr Grenville Cross’s attack on the Secretary for Justice, not because Mr Cross has on so many previous public appearances been a staunch defender of such secretaries, though he has, nor because I disagreed with it. I often disagree with Mr Cross. What surprised me was to see a breach of the unwritten rule which states that those who have retired from the vineyard should speak kindly of those who now toil in their place. This is not a law, of course, and Mr Cross has the usual citizen’s right to throw brickbats at the Secretary for Justice, if he supposes that the rest of us are not doing enough.

Mr Cross had, in effect, two complaints. The first was that it ill behoved the Secretary to complain that people were making public points about the right of abode for domestic helpers case, when he had made an unsuccessful effort to put the same points before the court himself. People had been publicly complaining that if the helpers were accorded the right we would be swamped by hordes of helpers, helpers’children and helpers’ husbands, all of whom would impose mammoth and unmanageable expenses on the education, welfare etc systems. This seems a bit unfair, or at least I hope it is. The objection to the campaign waged by opponents of the helpers is that so much of it is inaccurate. I do not know what points the government lawyers hoped to make in the late submission which the judge refused to entertain, but I suppose they were not going to say that the helpers would have to be paid the minimum wage, which is not true, or that they would all have an undeniable right to land in Hong Kong, which is not true either, still less that their children would have such a right. The whole point of the first right of abode catastrophe was for the government to establish, with the aid of Beijing, that you cannot inherit the right of abode from your mother if she did not have it when you were born. So if 100,000 helpers (who are of course already here anyway) got the right of abode tomorrow the number of children they would be able to import would be … zero. So I suppose, though of course we cannot be sure, that the government’s offerings on the implications of the judgement were going to be a good deal more nuanced than those of, say, Selina Chow.

Still, this is the sort of complaint which someone perhaps ought to have made. There is a whiff of hypocrisy in the official line that if we can’t say it in court nobody else can say it out of it. Mr Cross’s second complaint takes us into deeper waters. This was that people should be allowed to say what they like, as judges would not be influenced by it anyway. Lest I brutalise this by abbreviating it, here is a quote courtesy of the Post: “Strong emotions are sometimes stirred up in the community by particular court cases, both criminal and civil. But judges reach their decision on the basis of the evidence and on the application of the law, Judges are taken to be capable of excluding improper influences from their reasoning process, and this is fundamental to our legal system. His (the Secretary for Justice) whole emphasis should have been upon reassuring people that there is no reason to think that the judge will not reach a true decision on the evidence before him and the law.”

Now it is of course a fundamental notion of the legal system that judges OUGHT to reach their decisions without regard to “strong emotions in the community”, based solely on the evidence and the law. The principle is old enough to be enshrined in a little squirt of Latin: fiat justitia ruat caelum, or Let justice be done though the heavens fall. The maxim is usually attributed to the 18th century judge Lord Mansfield. But while this is a cherished objective Mr Cross is surely going too far when he says that it is fundamental to our legal system that this is what always happens. Judges are fallible human beings, after all. The law may, as Gilbert and Sullivan put it, have no fault or flaw, but people are people,  and judges are people too.

In fact in my explorations of legal history I have found that it is almost an invariable rule that any particularly stirring and cherished statement of the inviolability of human rights and the freedom of the subject turns out on close examination to have been a minority speech by a judge whose colleagues were succumbing to the passions of the hour. Sometimes there is not even a minority. Lawyers now cringe at the flimsy technicality used to justify the conviction for treason of Willam Joyce (aka Lord Haw Haw) in 1946. Joyce, an American citizen, had broadcast for the Germans during the war and been much hated. The people wanted him hanged and hanged he was, with the active connivance of the Court of Appeal and the judicial part of the House of Lords. Judges are part of the community and they cannot avoid feeling the passions which animate it. No doubt in a decade or two we will be embarassed by the contemporary judges in the UK and US who are prepared to trample on rights claimed since Magna Carta because they may impede the “War on Terror”. But that’s the way it goes.

The point, I think, is that there are some things which an experienced judge can put out of his mind and some which may be more difficult. I do not doubt, for example, that the sundry comments pro and con Nancy Kissel were like water off a duck’s back to senior judges, supposing they heard them. The merits of particular individuals or participants in court cases, the finer points of evidence, whether particular forensic techniques can be relied on, are the sort of things which we expect judges to be able to exclude from consideration. It is harder to be as completely confident when the sentiment being repeated on all sides is that a decision in one particular direction will lead to the end of Hong Kong civilisation as we know it, or indeed that if the decision is made in that direction then a political body in Beijing will be invited to overturn it, at the cost of further injury to our autonomy and rule of law. We may hope that judges will be able to ignore matters of this kind, but we are not required either by the law or common sense to assume that this will always happen.

In the end the rule of law is not just a matter for lawyers. It demands the support of all of us. One of the items of support required is that people should be moderate and circumspect in public discussions about matters upcoming. This is not a matter of law – even in Legco the ” sub judice”  rule is a convention, not a statutory requirement. It is a matter of good citizenship. People who make extreme predictions about the result of upcoming cases make it harder for the judge to deal with the matter dispassionately, and harder for us to believe that he has succeeded. So, unaccustomed as I am to agreeing with the Secretary for Justice about anything, I am with him on this one. People should shut up.