Kemal Bokhary

All city's top judges 'considered quitting'

PUBLISHED : Thursday, 08 September, 2011, 12:00am
UPDATED : Thursday, 08 September, 2011, 12:00am


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Hong Kong came close to a crisis in 1999 when all five judges of the top court considered resigning after their right-of-abode ruling was overturned by Beijing, according to a US diplomatic cable published by WikiLeaks. Mr Justice Kemal Bokhary (pictured) told the US consulate in 2007 that he and other four judges of the Court of Final Appeal 'seriously considered resignation' after the interpretation of the Basic Law by the National People's Congress Standing Committee in June 1999, which effectively overruled the ruling of the city's top court. Bokhary said they 'decided not to do so because 'you can only do that once'', according to the confidential cable dated August 28, 2007, sent by then US consul general James Cunningham to the State Department.

'The justices feared they would be replaced by less independent or competent jurists,' the cable said.

The other four judges of the Court of Final Appeal who made the landmark ruling in 1999 were Chief Justice Andrew Li Kwok-nang, Mr Justice Henry Litton, Mr Justice Charles Ching and Sir Anthony Mason. Ching died in 2000. None of the judges was available for comment last night. A judiciary spokesman also refused to confirm the report.

Simon Young Ngai-man, director of the Centre for Comparative and Public Law at the University of Hong Kong, said Bokhary's revelation that the judges considered resignation in 1999 was 'not a surprise at all'. To react in this way 'is very understandable. They felt strongly about the rule of law and they felt strongly about the rights they were upholding'.

'This is quite a significant revelation of what the CFA judges thought about the government's decision to seek a Standing Committee's decision at the time,' Young said. 'Of course, they could not have expressed their indignation in public; it goes to show how very strongly they felt about the matter. It is of course not surprising that they would have given the idea of resignation serious consideration.'

In the ruling on January 29, 1999, the top court decided that mainland children born before their parents became Hong Kong permanent residents were entitled to right of abode in the city.

The unanimous ruling also gave Hong Kong's courts the power to contradict decisions made by the National People's Congress if those decisions were inconsistent with the Basic Law. It placed restrictions on the circumstances in which cases could be considered by the mainland legislature and ensured that the importance of human rights would be paramount when considering the Basic Law.

Beijing regarded the CFA's ruling as a challenge to its power and authority.

The NPC Standing Committee subsequently overturned the ruling in an interpretation of the Basic Law. The committee said the court had been wrong not to ask it for an interpretation of the Basic Law before passing the judgment.

It was the first interpretation of Hong Kong's mini-constitution by the Standing Committee since the handover. Beijing's move caused huge controversies and antagonised the city's legal sector. The fact that Bokhary raised it with the US diplomat eight years later showed the depth of the grievances.

'Justice Bokhary believes that under current Secretary for Justice Wong Yan-lung the Hong Kong government is not likely to submit another CFA case to the Standing Committee for interpretation,' the cable said.

According to another cable, dated May 4, 2006, the Court of Final Appeal judge believed former secretary of justice Elsie Leung Oi-sie had been an 'unsung heroine' of Hong Kong during her tenure. 'Bokhary believed that Leung had 'talked them [the PRC government] out of gross excesses' with regard to Hong Kong policy on multiple occasions,' the cable said.

Leung served as justice minister from 1997 to 2005.

Bokhary's praise for Leung, currently vice-chairwoman of the Basic Law Committee, was in stark contrast to accusations by some pan-democrats that she was 'pro-Beijing and not particularly sympathetic to their concerns about maintenance of Hong Kong's high degree of autonomy', according to the cable.