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Dissents look to the future, says leading judge Kemal Bokhary

Court of Final Appeal non-permanent judge Mr. Justice Kemal Bokhary, known for his dissenting judgement to speak out for judicial independence and human rights, said in an exclusive written interview with CitizenNews that he never felt disheartened for being the only voice on the bench sometimes, because "dissents look to the future".

Without directly commenting on the controversial national security law imposed by Beijing, Justice Bokhary said National People's Congress Standing Committee's interpretations and decisions "diminish our judiciary's autonomy but not its independence". He expressed his confidence in the judiciary that it will "always decide in conformity with conscience".

Read our questions and answers with Mr. Justice Bokhary:

1. What has led you to study law in the UK? Why is the US Supreme Court Marbury v Madison your favourite case? Do you have a favourite English case and why?

My choice to read for the bar was based on two main things. One was the example set by a number of my relatives. And the other was my awareness (from history lessons learned in school) of the extent to which society is affected by how the courts decide constitutional cases. Of such decisions, none was as much a force for good as the United States Supreme Court’s decision in Marbury v Madison 5 US 137 (1803) establishing the judicial duty to strike down any law irreconcilable with the constitution. I find it difficult to single out any case as my favourite English case. It rather depends on the point which I happen to have to decide on any given occasion.

2. You've worked alongside with Mr. Andrew Li (former chief justice of the Court of Final Appeal) during private practice. Have you ever worked in a same case with him, and what's your favourite encounter with him? How do you see the quality in him that leads him to become the chief justice?

For a time, Andrew Li and I were in Sir Oswald Cheung QC's chambers. We have been opponents at the bar. After I became a judge, he appeared as counsel before me. Our most important work was of course done as colleagues on the Court of Final Appeal. He is totally dedicated, extremely able and never rests until the work is done. Those are the qualities which he brought to the performance of his duties as Chief Justice.

3. Do you have any struggle in joining the bench when asked by Sir TL Yang? For outsiders, what's really the difference between as counsel and the judge? Do you remember the most memorable case that you presided over? After you retire in 2012, how do you usually spend your time?

By the time when Sir T L Yang invited me to join the bench, I had already formed a wish to become a judge eventually. His invitation came sooner than I expected. But I accepted it without hesitation. Whether at first instance, on intermediate appeal or on final appeal, the similarity between counsel fighting cases and judges hearing cases is that they are all engaged in the pursuit of justice according to law. The difference is that every counsel's role is to advance her or his client's cause while every judges' role is to determine the case impartially.

Many cases remain in the depths of my memory. They come to the surface as stimulated by circumstances. One of the cases which is never far from the surface is a case in which I was the sole dissentient in the Court of Final Appeal, namely Tam Nga Yin v Director of Immigration (2001) 4 HKCFAR 251 (commonly called The Adopted Children Case). The reason why is explained in my memoirs Recollections published by Sweet & Maxwell in 2013. You will find that at pages 562-567. As is well known, I dissented in favour of the adopted children. Since my retirement as a Permanent Judge in 2012, I have been a Non-Permanent Judge and sit as such from time to time.

Since my "retirement", I have written six published books, and I am at present putting the finishing touches to a seventh book. In addition to editing the law reports, I edit a number of textbooks. Occasionally I deliver talks and write articles. Of course my most important role by far is that of husband, father and grandfather.

4. You are praised for your dissenting judgements. Do you sometimes feel frustrated that you are the minority in the bench in approaching some of the most controversial yet important legal issues?

I was particularly sad that my view in The Adopted Children Case did not prevail. But I have never felt frustrated or disheartened. Dissents look to the future. And it is in a positive frame of mind that one should look to the future. Today's wrongs, even if not put right tomorrow, may well be put right on the day after tomorrow - perhaps within, or perhaps beyond, one's own lifetime.

5. You warned of "storm of unprecedented ferocity" in 2012. In a journal published in 2019, you mentioned it has "broken out in full force". What has led to you this assessment? What role should lawyers and judges do to get out of this "storm"?

It is painfully obvious - is it not? - why I say that the storm has broken out in full force. The greater the difficulty, the greater must be the effort to cope with it. I cannot go into particulars without running the risk of pre-judging cases or compromising judicial neutrality.

6. Some law students are frustrated with the status quo and even question the value of studying the law. What’s your message to these to-be lawyers?

If any law students are wondering whether it is worthwhile continuing with their legal studies, I do not think that they would appreciate my saying anything more than that I hope that they decide to continue.

7. More recent ruling leaves open whether the NPCSC could issue a free-standing decisions (i.e. not interpretation) binding on Hong Kong, which has now become the case over the recent national security law legislation. Do you feel such free-standing decisions illustrate and could potentially be against the understanding of Basic Law and one country, two systems?

Standing Committee interpretations, reinterpretations and free-standing decisions diminish our judiciary's autonomy but not its independence. The judiciary will, I trust, always decide in conformity with conscience. So it will never abandon its duty to uphold fundamental rights and freedoms as guaranteed by the constitution.

8. Finally, as a Hongkonger, how worried are you and what does it take to weather through this "storm"? Are you confident that beyond 2047, we will see one country two systems and "democratic deficit" addressed?

Redressing the democratic deficit will not be easy. But it is not impossible. All efforts in this regard should be pursued peaceably and within the framework of the constitution. If it is to continue after 30 June 2047, the duration of the "one country, two systems" principle will have to be extended. I hope that it will be.


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