Kemal Bokhary

Court's liberal voice revered for dissent

PUBLISHED : Monday, 09 April, 2012, 12:00am
UPDATED : Monday, 09 April, 2012, 12:00am


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Mr Justice Kemal Bokhary has never been far from the spotlight in his 23 years of wearing the judge's robe.

Hailed as the liberal voice and conscience of the Court of Final Appeal by his colleagues in the legal profession, he has also been in the public eye.

Indeed, Bokhary has made headlines for his pithy wisdom, his threat to resign, as revealed in a leaked United States embassy cable, and for the uproar over his niece's slapping of a police officer.

Born in Hong Kong to a Pakistani family, Bokhary is revered for contributing to the development of the city's legal system by taking a different line than many of his peers.

He has delivered a number of dissenting judgments on issues as fundamental as freedom of assembly and the right of abode.

Bokhary is also a strong advocate of the rule of law and judicial independence, as shown by his repeated objections to seeking interpretations of the Basic Law from Beijing.

And his contribution goes beyond the field of law. When police are lauded for efficient and effective crowd control, the plaudits should really go to Bokhary who chaired an inquiry into the 1993 Lan Kwai Fong stampede - in which 21 New Year revellers were crushed to death.

His report set out crowd-control guidelines that remain in use at major events - from firework displays and the Lunar New Year market to large-scale street protests.

Born in 1947, Bokhary was educated at King George V School, before moving to London for his university studies. He was called to the Bar in England in 1970 and in Hong Kong in 1971. 'I was very keen on the law and thought it would make an interesting profession. The more I saw, the more interesting it got,' Bokhary once said of his reasons for choosing the legal field. 'I had a very deep interest in the law both in theory and practice.'

Aged 35, he was appointed a Queen's Counsel, with expertise in companies and commercial law. Six years later, he became a Court of First Instance judge. In 1993, he became, at the time, the youngest judge to sit on the Court of Appeal.

After the 1997 handover, he joined the first cohort of Court of Final Appeal judges, tasked with building its authority under the Basic Law (the city's new mini-constitution), and maintaining Hong Kong's legal standing among its fellow common law jurisdictions.

Bokhary will stand down in October as his term of office has not been extended. In fact, his job has been handed to a man nine months his senior, Court of Appeal vice-president Mr Justice Robert Tang Ching.

But Bokhary's voice will not disappear from the judiciary. As one of 20 non-permanent judges, he will still preside over some cases when selected to do so by the chief justice.

'Mr Justice Bokhary is the Lord Denning of Hong Kong,' said veteran senior counsel Martin Lee Chu-ming, comparing him to perhaps England's greatest law-making judge of the 20th century. 'He is very liberal-minded and serious about the rule of law. He is also concerned about the underprivileged.'

Lee praised Bokhary for writing many dissenting judgments, which he said was beneficial to the development of the law.

Bokhary's tendency to defend judicial independence and protect human rights shines through from the line he takes in his judgments - especially the dissenting ones. In the landmark 'Congo case' - in which the court was asked to rule on whether a state is immune from litigation in Hong Kong's courts - he opposed sending the matter to Beijing for interpretation. The vote went three to two against his position.

In a powerful opening, Bokhary wrote: 'It has always been known that the day would come when the Court has to give a decision on judicial independence. That day has come. Judicial independence is not to be found in what the courts merely say. It is to be found in what the courts actually do. In other words, it is to be found in what the courts decide.'

Another example came in 2002, when Bokhary sought to mitigate the impact of a 1999 interpretation of the Basic Law from Beijing that banned large numbers of children born on the mainland to Hong Kong parents from claiming right of abode in Hong Kong, despite an earlier court decision in their favour.

Bokhary found himself in a minority of one in 2002 when judging a case in which the director of immigration sought to remove mainlanders born before their parents became permanent residents. He argued that the government should have had to take into account pleas to stay on humanitarian grounds.

In his dissenting opinion, Bokhary wrote: 'In Hong Kong, where we aspire to be humane as well as orderly, it is plain that the director [of immigration] would have been duty-bound at least to read the applications to see if they or any one or more of them disclosed a strong and obvious case for a favourable exercise on humanitarian grounds of his discretion.'

It was not just his judgments that made the headlines. Last year, the release of a 2007 US cable by WikiLeaks revealed that Bokhary had, along with the four other top court judges, threatened to quit in 1999 after Beijing effectively overruled a judgment by the top court in another case relating to right of abode issues.

While the legal community speaks of its regret at his departure, Bokhary simply said it was 'no big thing'.

'The loss of one judge, even if he's the most liberal judge in the court - even if he's the only liberal judge in the court - is not fatal,' he said on the day of the announcement.

'The important thing now is for the other judges to demonstrate ... [that] the judiciary will stay true to their judicial oaths and the people of Hong Kong can be content.'