Nationality should not be a criterion for appointing judges to the city’s top court, Mr Justice Kemal Bokhary said on Friday, rejecting a suggestion that only Chinese nationals should take up the posts.
The liberal judge, who retired as a permanent judge on the Court of Final Appeal last month, was responding to a mainland scholar’s suggestion that overseas judges should be excluded from Hong Kong’s highest court.
“If you make a change, you really want to know why you are making a change, and people will worry about it. But I do emphasise commitment to Hong Kong and understanding of Hong Kong is not a matter of nationality,” Bokhary said on a Cable TV interview broadcast.
Earlier this month Cheng Jie, an associate professor of law at Tsinghua University, said all Court of Final Appeal judges should be Chinese nationals. He made the comment during a seminar on the Basic Law in Hong Kong.
Bokhary was asked whether he thought the 2001 Court of Final Appeal ruling – which conferred automatic residency on babies born to mainland parents in Hong Kong – would have been decided differently had it reached the court in 2047, or 50 years after the handover. He replied that he would expect a similar ruling.
“It seems to me that the law is clear enough, and I don’t see how you can make it less clear by the passage of time,” he said. “Unless I think ill of the judges, I would expect a similar decision.”
His comments came amid a public discussion about reinterpreting a long-standing decision of the courts. That discussion led him to comment last month that a “storm of unprecedented ferocity” was gathering over the rule of law in Hong Kong.
“The fact that people are making these public statements at least shows this: whatever you have to say, you have to say it openly and no question of somebody being able to pick up the phone and tell the judiciary ‘by the way, it would be much more convenient if you did this other than the other’,” he said in the interview.
“In a free society and open society, controversy is a hallmark,” he added.
Bokhary also further responded to Basic Law Committee vice-chairwoman Elsie Leung Oi-sie’s contention that the legal profession in Hong Kong, including judges, lacked an understanding of the relationship between Hong Kong and Beijing, which has led them to make mistakes in rulings of the top court.
He also stressed the importance of a free and independent media in Hong Kong.
“An independent media and an alert population, they go together and they are probably the chief component when it comes to the safeguarding of the Basic Law,” he said.
Bokhary, 65, stepped down on October 24 as a permanent judge of the Court of Final Appeal. He was succeeded by Mr Justice Robert Tang Ching, who is nine months older than Bokhary. He will continue to serve as a non-permanent judge, hearing cases only occasionally.