Kemal Bokhary

Retiring Court of Final Appeal judge Kemal Bokhary warns of legal turmoil

PUBLISHED : Thursday, 25 October, 2012, 12:00am
UPDATED : Thursday, 25 October, 2012, 11:46am

Clouds heralding a "storm of unprecedented ferocity" are gathering over the rule of law in Hong Kong, a retiring judge of the top court said yesterday.

Mr Justice Kemal Bokhary said "talk about reinterpreting a decision of the courts of long standing" was one specific element of the storm - "and the atmosphere created by the mere fact that this call is being made will constitute the rest of it".

Bokhary was understood to be referring to calls for a reinterpretation of a 2001 Court of Final Appeal ruling which conferred automatic residency on babies born to mainland parents in Hong Kong.

He also disagreed with Basic Law Committee vice-chairwoman Elsie Leung Oi-sie's contention that the top court had made mistakes in the past.

"I think the storm clouds come from anybody, whether he or she may be one who doesn't appreciate the 'one country, two systems principle'," Bokhary said. The "one country, two systems" formula was designed to emphasise that "despite the fact that it's one country, it is two systems", he said.

Leung, the former secretary for justice, said earlier this month that the legal profession in Hong Kong, including judges, lacked an understanding of the relationship between Hong Kong and Beijing. She said this had given rise to mistakes in previous rulings in which the top court, in her view, had superseded the central government's power.

She also said asking Beijing to interpret the Basic Law was the best way to curb the influx of mainlanders giving birth.

"Ms Leung has expressed her views, which she is perfectly entitled to," Bokhary said. "Equally, people who have disagreed with her are perfectly entitled to express their disagreement. I haven't agreed with them."

Regarding Leung's claim that judges had made mistakes in previous rulings, Bokhary said: "She thinks we had, but we hadn't."

He did not think her comments had hurt the judicial system. "You can't jeopardise the independence of justice in Hong Kong by expressing views. If her views were acted upon, the situation might be different. Justice would be very delicate if it was jeopardised every time somebody said something."

Asked whether there had been changes in people's rights since Chief Executive Leung Chun-ying took office, Bokhary said: "No. I don't think things would have been any different if there had been a different chief executive. The commitment of the people to the rule of law and freedom in Hong Kong is, I think, unshakeable."

Bokhary, 65, stepped down yesterday as a judge of the top court. He will continue to serve as a non-permanent judge hearing cases only occasionally. Bokhary said he was sorry to go, "mainly because there may be problems and I will be on the sidelines".