"Absent full democracy, can the Rule of Law prevail?" by The Honourable Mr Justice Kemal Bokhary, GBM, JP

Project Citizens Forum: The Rule of Law and Its Importance to Hong Kong (8 December, 2018)

Speech by The Honourable Mr Justice Kemal Bokhary, GBM, JP

Absent full democracy, can the Rule of Law prevail?

Kemal Bokhary was born in Hong Kong in 1947. Called to the Bar in 1970, he was appointed a Queen's Counsel in 1983. He practised before the Hong Kong courts and the Privy Council until 1989 when he was appointed a High Court Judge. In 1993 he was elevated to the Court of Appeal. From 1997 to 2012 he was a Permanent Judge of the Court of Final Appeal. He is now a Non-Permanent Judge of that Court. He was authored five published books.

 

Hong Kong has only three natural resources: a harbor which is still one of the finest in the world; the teeming Pearl River Delta as a hinterland; and a population in which circumstances have forged and instilled a powerful work ethic and an abiding commitment to freedom and civil rights.

      We started as little more than a fishing and farming community with a bit of stonecutting and, some say, service as a haven for smugglers and perhaps even pirates. From those beginnings, we evolved into a great entrepot for the China Trade - then into a hive of tourism and light manufacture - and finally into the international financial centre which we are today.

      I am of a Hong Kong family. My maternal great-grandfather, A F el Arculli, was born in Hong Kong a decade and a half into the British era, his parents being in Hong Kong when Britain first arrived here in 1841. A decade and a half after the handover in 1997, the latest generation of my family began with the birth in Hong Kong of my eldest grandson Zane Heady. (If you ever find anything written by me in which there is no reference to my grandchildren, you had better keep it for its rarity value.)

      What is Hong Kong’s greatest problem today? Quite simply: a democratic deficit. Our constitution the Basic Law promises universal suffrage in the selection of the Chief Executive and the election of all the members of the Legislative Council. The promise is wholly unfulfilled in regard to the selection of the Chief Executive. Possibly one can say that it is half fulfilled in regard to the election of Legislative Councillors.

      There was a time when I would have been extremely offended to hear anybody even ask if the rule of law exists in Hong Kong. But over time certain uncomfortable realities dawned upon me. And in 2010, at a law conference in London, I raised for the first time the question: absent full democracy, can the rule of law prevail?

      I answered then as I answer now: yes, on four conditions:-

  • First, there must be an entrenched constitution under the stewardship of an independent judiciary. (You can never have the rule of law without an independent judiciary, but you can have the rule of law without an entrenched constitution if - but only if - you have democracy.)
  • Secondly, powers must be properly separated.
  • Thirdly, human rights must be protected in conformity with international norms.
  • Fourthly, finally and most importantly, whatever you manage to do for the rule of law in advance of full democracy must never be used as justification of, or an excuse for, delay in democratic development.

      Nobody, as far as I am aware, has ever produced a modern definition of the “rule of law” to her or his own complete satisfaction, let alone anybody else’s. But I would suggest that those four conditions make a contribution towards identifying the essential attributes of the rule of law.

      So how do we stand in relation to those four conditions?

  • First, our constitution is entrenched. And I say that our judiciary is independent. That has been questioned, both here and abroad, by persons including responsible ones. But I think that Standing Committee interpretations and reinterpretations impact not so much on judicial independence as on judicial autonomy. Reducing what the judges can decide certainly reduces the judiciary. But for judges ever to decide other than in accordance with strict fidelity to the law because of some explicit or tacit instruction from the political branches of government would destroy the judiciary.
  • Secondly, powers are properly separated in Hong Kong.
  • Thirdly, human rights, apart from democracy itself (which is vital to human rights) are in Hong Kong protected conformably with international norms.
  • As to the fourth, final and most important condition, the position is that amid recriminations, accusations and counter-accusations, one fact stands out: democratic development has ground to a halt in Hong Kong. An urgent restart is needed. Nothing less than the success of the “one country, two systems” principle is at stake.

      I have referred to human rights. What do I mean by “human rights”? In today’s world human rights represent the minimum which people everywhere are entitled to demand for themselves and must accord to others so that we may all live and let live as human beings enjoying the maximum personal autonomy consistent with life in organized society. These entitlements sound in civil liberties, personal security, security of property however modest, self-expression, public participation (which is democracy), respect for otherness, education, healthcare and at least a tolerable standard of living. They enable each and every one of us to be ourselves and to live and let live with human dignity.

      Within all of that is the right of access to the courts, which may even be the most important right of all. It is an arterial right, for it is the right by which people can go to an independent judiciary for the enforcement of all their other rights.

      Thank you.

 

Speech by The Right Honourable the Lord Mance Press here

Speech by Ms Gladys Li, SC, JP Press here

Welcoming Speech by Mr T L Tsim Press here