Nationality should not be a criterion for appointing judges to the city's top court, Mr Justice Kemal Bokhary said yesterday, rejecting a suggestion that only Chinese nationals should take up the posts.
Bokhary, who retired as a permanent judge of 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 [that] commitment to Hong Kong and understanding of Hong Kong is not a matter of nationality," Bokhary said in a Cable TV interview. This month Cheng Jie, an associate professor of law at Tsinghua University, said the Court of Final Appeal judges should all be Chinese nationals or permanent Hong Kong residents.
Bokhary was also asked about the Court of Final Appeal ruling in 2001 conferring automatic residency on babies born to mainland parents in Hong Kong. He was asked if the decision would have been different if it had reached the court in 2047, 50 years after the handover.
Bokhary replied that he would expect a similar ruling then. "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. Unless I think ill of the judges, I would expect a similar decision."
There have been public calls for a reinterpretation of the 2001 decision. Those calls led Bokhary to say 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. [There should be] 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 than the other'," he said in the interview.
"In a free and open society, controversy is a hallmark."
Bokhary 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 has said he believes his liberal rulings are behind the government's decision not to extend his term of service beyond his retirement.
Bokhary will continue to serve as a non-permanent judge.