Kemal Bokhary

Retirement of liberal judge raises fears for our core values

PUBLISHED : Wednesday, 04 April, 2012, 12:00am
UPDATED : Wednesday, 04 April, 2012, 12:00am


Related topics

Leung Chun-ying was elected chief executive amid rising concern over the erosion of core values related to freedoms and the rule of law, as well as social cohesion. As a result, his popularity has taken a hit.

On the eve of the poll, some 220,000 Hongkongers took part in an unofficial vote. More than 120,000 people cast blank votes to show their discontent with pro-establishment candidates who have no mandate from the people. These voters were motivated by their strong desire to safeguard Hong Kong's core values. They are now genuinely concerned that a Leung administration would spell the end of an era when rights, freedoms and the rule of law are the cornerstone of society.

These worries coincide with news of the retirement of a liberal judge. The Court of Final Appeal permanent judge, Mr Justice Kemal Bokhary, who is known for his opposition to seeking Beijing's interpretation of the Basic Law and who is a strong defender of human rights, will become a non-permanent judge when he retires in October, when he reaches the age of 65. But, surprisingly, he will be replaced by an even older judge - Court of Appeal vice-president Robert Tang Ching. So, obviously, age is not the reason Bokhary has not been invited to stay on.

Many people in the legal circle believe Bokhary didn't have his term extended mainly because of his stance against the interpretation of the Basic Law.

The government owes the public an explanation. Bokhary has strongly defended human rights, freedoms and the rule of law during his tenure, and been involved in many influential cases that touched on these core principles.

By contrast, Tang, though highly respected and extremely capable, is far more conservative. Hence, it's inevitable that people would conclude that with Bokhary's retirement - in the wake of the retirement last year of chief justice Andrew Li Kwok-nang - the judiciary will become more conservative.

The biggest difference between a permanent and a non-permanent judge in the Court of Final Appeal is that the former must hear all appeal cases. Non-permanent judges have only rotating duties. We don't know the reasons and logic behind the government's decision, but the outcome could be an erosion of the rule of law and credibility.

After the handover, the appointment of foreign permanent judges to the Court of Final Appeal attracted extensive political debate and opposition from the pro-Beijing camp, which feared the objective was to protect Britain's political interests after 1997. Such thinking was motivated by hostility towards the rule of law and a belief that there should be less emphasis on judicial independence.

A commitment to the rule of law and judicial independence is the bedrock of Hong Kong's success and way of life. Only with an independent judiciary can we guarantee the protection of private property rights and a legal system that supports a capitalist economy. Without it, Hong Kong will just be another Chinese city.

The first time Hong Kong sought a Basic Law interpretation by the National People's Congress was during the Tung Chee-hwa administration over the right of abode of mainland-born children of Hong Kong residents. There have been subsequent interpretations which intrinsically weakened the spirit of the law.

The recent disputes over mainland mothers giving birth in Hong Kong and the right of abode for foreign domestic helpers have stirred widespread public debate over whether we should again take the interpretation route. Dozens of local NPC deputies sent a joint petition to Beijing to request an interpretation. That is not only a blatant disregard of the rule of law, but also an attempt to destroy our legal system and the spirit of the law.

Our legal system is our most valuable asset and one of the most cherished core values on which Hong Kong thrives. Any perceived threats to the integrity of our legal system and treasured core values will do irreversible harm.

Albert Cheng King-hon is a political commentator.