tim's experiment

Well the Department of Justice has plumbed a new low. Not content with failure to enforce the rules on contempt of court, the department is now ignoring them itself.

Some years ago the then editor of the South China Morning Post heard that an interesting document had been tabled as part of a court case. Wishing to be sure that this would be reportable he wrote to the presiding judge urging that the document concerned should be read out in court. This would make it part of the proceedings, and reports would then be immune from libel actions.

He received a very irate reply from the judge, pointing out that it was contempt of court for anyone to communicate with the judge in a case with a view to influencing his conduct of it. Judges are supposed to consider entirely and only the material offered by the parties to the case in court. The judge did not seek a prosecution of the editor only because neither his motives nor the effect of his action had any serious implications for the matter in dispute.

OK, so have we all got that? If you are a spectator or a litigant, the judge is only supposed to hear from you in submitted documents and oral arguments in court. This has the advantage that justice is seen to be done, and that the opposition has a fair chance of countering your efforts.

Now to Thursday night and Friday morning. On Thursday night the government received official word from Beijing that the Standing Committee of the National People’s Congress would consider the possibility of handing down an interpretation of Basic Law Article 140, the one which concerns oath-taking. Note that the word said they would consider the matter. It did not say what the decision would be, or what, if an interpretation was decided on, the interpretation would say.

On Friday morning we were officially told, in a government press release duly broadcast on RTHK and all channels, that the Department of Justice had “informed the court” about this message.

Well never mind about “informed the court”. The court, after all, is just a room. What they meant was that they had written, emailed, telephoned, messaged by pigeon or in some other way communicated with the judge hearing the government’s application for judicial review of the Legco chairman’s recent decisions on oath-taking.

This does not admit of an innocent explanation. The Department of Justice and the government via Mr C.Y.Leung are litigants in the case. They are not allowed private intercourse with the judge hearing it. This is unfair to the other participants and a violation of the principle that the matter should be dealt with in public.

What is the effect of telling the judge that the NPC Standing Committee may change the law while he is working on the case? Clearly this is an attempt to intimidate, to add to the pressure of a high-profile case, to suggest to the judge that a decision unpalatable to the government will, or at least may be, instantly overthrown by a Higher Power.

At best this is an attempt to distract the judge from his proper business, which is to decide the matter before him on the basis of the law as it is now. The Standing Committee of the NPC is, for the time being, an unknown quantity. The interpretation may not materialize at all. It may not be relevant to the case at hand. It is also possible that the judge will decide, as he was urged to by some of the parties to the case, that he has no jurisdiction over Legislative Council procedure, so the application before him must fail whatever its merits as a criticism of the rules applied by the Legco chairman.

The fact is that we don’t know, and the government doesn’t know, what the NPC will decide or how it will affect the bid for judicial review. What we do know is that the government is cheating. Wake up, gentlemen. The Rule of Law is supposed to apply to you too.