When Court Criticism Threatens the Rule of Law: A Three-Part Test

—Brian Christopher Jones, Lecturer in Law, University of Dundee. Email: b.c.jones@dundee.ac.uk.

Criticism of the courts, although essential to the operation of democracy, has recently been tested on a number of fronts, leading to a host of allegations that such criticism may violate the rule of law. But one of the major problems in relation to this language is that we don’t have a good standard to determine what type of criticism is democratically acceptable, and what type of criticism threatens the rule of law. Scholars and journalists often use a common sense ‘smell test’ to decide whether certain statements traverse the rule of law, but this is imprecise and does not produce any agreed upon metric. This piece recommends a three part test for determining whether criticism crosses the bounds of acceptability, which attempts to add more sophistication into the process of parsing credible threats from merely harsh criticism.

Before setting out the test, a few disclaimers should be noted: here I use a relatively thin conception of the rule of law. Borrowing words from the European Convention of Human Rights (ECHR) Art. 10(2), I look at criticism that may challenge “the authority or impartiality of the judiciary”. The below test is designed to allow as much criticism as possible, provided that this criticism does not traverse the rule of law. Finally, I’m only concerned with high level public criticism (e.g., criticism from the media, government ministers or elected lawmakers), and not necessarily low-level criticism. Finally, this piece does not advocate legally restricting speech, but merely being able to discern between threats to the rule of law and harsh criticism.

Step 1: Targeted

The first consideration when assessing judicial criticism is whether or not a specific judge or group of judges has been targeted. After the UK High Court Brexit decision, the three judges who made the judgment were specifically targeted. Much of the criticism focused on the individual judges, rather than on the decision as a whole. The Daily Mail labelled the trio of judges “Enemies of the people” whilst displaying their pictures underneath, and then proceeded to individually (and personally) attack the judges, labelling the most senior judge a “committed Europhile” and noting that another judge was “openly gay”. I’ll come back to this later, but suffice it to say that this criticism was especially targeted. Such targeted criticism need not be so vicious, however: it is often seen in family law situations, or in other situations where judges may be questioned about their sentencing practices. These examples can be separated from more general (or collective) criticism of the judiciary or of the administration of justice. Criticism that judges are “too political” or that justice system is “unfair” or “biased” is not targeted criticism—even if accurate and meaningful—and will not pass the first step.

Step 2: Element of abuse or belligerence

If criticism is targeted, the second leg of the test is whether the criticism exhibits an element of abuse or belligerence. Here there must be a decidedly strong reaction or condemnation of a judge or a particular decision. Targeted criticism that is not abusive or belligerent can and often does happen. For example, a judge may say something especially biased or provocative, and then get reprimanded in the media and elsewhere because of it. Or, perhaps a specific court has been systematically favouring one party over another, and this has recently been condemned by a government official. The situation in both these cases would be that a specific judge or court was targeted, but that it lacked an element of abuse or belligerence.

The elements of abuse or belligerence that I’m most concerned with usually focus on an inherent personal characteristic of judges (e.g., age, ethnicity, mental capacity, etc.). For example, older and younger judges are often susceptible to attack. In Taiwan, the label “dinosaur judges” has caught on, which is usually placed on a judge that is older and considered “out of touch” (but this can also be applied to young, “naïve” judges). The most common event to trigger such a label tends to be a judge’s sentencing discretion. Oftentimes sentences are deemed too lenient, and here we may often see criticism that is targeted and also includes an element of abuse. Such criticism may get extensive coverage in the press or on social media, and there may even be an element of abuse—especially for older or younger judges, who are vulnerable to such attacks. However even though these two elements are present, that does not mean that the criticism violates the rule of law (even if the criticism comes from ministers or elected lawmakers). In order for it to do so, the third hurdle must also be passed.

Step 3: Focus on the validity or legitimacy of the decision-maker

The final part of the test is that there must be a focus on undermining the validity or legitimacy of the decision-maker. Here, my concern is questioning the judge’s very right to make the decision. In the Taiwanese “dinosaur judge” example above, although the first two elements of the test could be met, and the criticism could be harsh, it does not cross into the bounds of questioning the judge’s right to make that decision, and therefore does not threaten the rule of law. Let me give you three examples that do traverse the rule of law.

In February 2017 Hong Kong District Court judge David Dufton sentenced seven local policemen to prison for an assault that took place during the Occupy Central Movement of 2014 (the original charge against the officers was grievous bodily harm, which is a more serious offence, but this was reduced to assault). The backlash against the ruling displayed strong evidence that it crossed the bounds of acceptability. The criticism was undeniably focused on Mr Dufton. The judge was labelled a “yellow heart”—implying that he was a sympathizer of the Umbrella Movement—and also a “dog”. Further, his validity as a decision-maker was questioned, as he was deemed a “foreign” judge who may hold “allegiance to other sovereigns”. Of course, the Basic Law allows for foreign judges to partake in adjudication throughout Hong Kong courts (HK Basic Law, Arts. 82 & 92). Nevertheless, the suggestion that Mr Dufton’s ethnicity should not allow him to decide this case, given that he is not of Chinese or Hong Kong descent, is evidence that the criticism went too far.

Another example of ethnic criticism that traversed the rule of law came in 2016 from then-US presidential candidate Donald Trump. After a decision against Trump University, Mr Trump criticised the judge on numerous occasions over Twitter and in interviews, displaying evidence of targeted and abusive comments. Notably, he attempted to delegitimise the Mr Curiel’s very right to make the decision by noting the judge’s “Mexican” ethnicity (N.B., Judge Curiel was born in Indiana, and is an American citizen). This criticism also crossed the bounds of the rule of law.

Going back to our earlier example regarding Brexit and the Daily Mail, to label the trio of judges “enemies” was an attempt to invalidate or undermine the decision-makers, as it implies not only that they were actively working against the British citizenry, but that they had a predetermined view on this issue and were therefore unfit to make such a decision.

Conclusion

There’s little doubt that some judicial criticism threatens the rule of law, but journalists and scholars need to be cautious in waving this banner. Too much clamour about this could desensitise citizens as to its importance and also provide the impression that any court criticism—even tough but legitimate criticism—violates the rule of law. The above three part test has attempted to add some sophistication to such an assessment, although suggestions regarding refinement are certainly welcome. After all, if we’re going to take judicial criticism seriously, then we must establish a more precise method of determining acceptability.

Suggested Citation: Brian Christopher Jones, When Court Criticism Threatens the Rule of Law: A Three-Part Test, Int’l J. Const. L. Blog, Sept. 5, 2018, at: http://www.iconnectblog.com/2018/07/when-court-criticism-threatens-the-rule-of-law-a-three-part-test