Hong Kong’s anti-extradition movement and common law judges’ extrajudicial opinions

During the recent anti-extradition movement in Hong Kong, a High Court judge participated by signing a petition against the controversial bill amendments, which was considered inappropriate by the Chief Justice. This is reminiscent of an incident involving Australian High Court Justice Michael Kirby, who called upon the government to boost funding for state schools in a university ceremony and attracted criticism from the Prime Minister as a consequence. Against these incidents, this article suggests that judges’ extrajudicial expressions of their views on non-pending legal issues (with or without political implications) or on matters concerning the judiciary should be respected, and in any case, such expressions could be beneficial to the legal system.

The UN Basic Principles on the Independence of the Judiciary state that judges are entitled to freedom of expression to the extent that preserves judicial integrity, impartiality and independence. As with restrictions of other human rights, any restriction of judges’ freedom of expression must be necessary and proportionate. In assessing necessity and proportionality, it must be noted that judicial impartiality and independence are already safeguarded by rules of disqualification, under which a judge must recuse himself where there is actual bias or where a reasonable fair-minded observer would find a real possibility of bias. Any restriction of judges’ extrajudicial expression serves merely as an additional, ex ante safeguard.

Take the Hong Kong’s Guide to Judicial Conduct (“the Guide”) as an example. Under the Guide, a judge should not express views extra-judicially on controversial issues which are likely to come before the courts.

However, the European Court of Human Rights (ECtHR) has held that a proportionate policy should not prohibit all extrajudicial expressions with political implications (Wille v Liechtenstein, 28396/95, 28 October 1999, [67]). Regard must be paid to the contents and context of the expressions and the motives behind them. (Kudeshkina v Russia, 29492/05, 26 February 2009, [95]; Baka v Hungary, 20261/12, 23 June 2016 [166]). More importantly, political views, especially views concerning the functioning of the legal system enjoy ‘a high degree of protection’ under Article 10 of ECHR (Kudeshkina, [95]; Baka, [165]). In Baka [171], the Grand Chamber explicitly recognised a judge’s right to express his view publicly on legislative reforms affecting the judiciary. Therefore, to the extent that judges must be cautious in exercising their freedom of expression outside the court, Strasbourg authorities do forcefully suggest that we should always respect judges’ expressions when they are addressing issues about the integrity and independence of the judiciary. Interference of such expressions would only do a disservice to the overarching aims of the restriction.

Regarding judges’ extrajudicial expressions on legal issues, they can be substantiated by our acceptance of obiter dicta under common law. As with extrajudicial legal expressions, obiter are legal opinions of a judge which are unbinding and unnecessary to the determination of a case. Their persuasiveness and value to the legal system depend upon their cogency and factors such as whether they are fully argued by counsel. Obiter are often made on unsettled (hence controversial) issues in anticipation of cases presenting similar issues and are proved to be influential at common law. Given the resemblance between extrajudicial legal expressions and obiter, it is baffling to see what makes the former more objectionable than the latter.

Finally, any issue may become the subject matter of future disputes so there can be no bright line dividing appropriate and inappropriate expressions. Ex ante restrictions as such would have a chilling effect on judges, dissuading them from participating in public debate on matters concerning the judiciary and from authoring legal texts or giving lectures. As these expressions entail wisdom of our judges and enrich public debate, it will be in the public interest to delimit a clearer boundary for their legitimacy. The starting point of reforming the Guide may be scaling down the off limits from ‘issues which are likely to come before the courts’ to ‘issues of pending proceedings’.

In conclusion, notwithstanding that guidelines governing judges’ extrajudicial expressions understandably vary across jurisdictions with different legal cultures, they must always call for close scrutiny to ensure that they do not compromise judges’ freedom of expression and the interests of the legal system.