一直竭力守護香港司法獨立的終審法院常任法官包致金，昨日告別終院之時，仍然語重心長的警惕香港人，我們最珍貴的法治基礎，將會遭遇空前猛烈的風暴衝擊。《主場新聞》回顧97年回歸以來，香港的司法制度和法治精神不斷受損，早已烏雲密佈；而在過去十五年有份棄守防線、損害法治的人，包括歷任特首和一眾高官。
選擇性檢控
1998年 新華社香港分社違反《私隱條例》要求，時任律政司司長梁愛詩拒絕就此控告新華社
1999年 2月
梁愛詩以「公眾利益」為由，拒絕檢控親中報業大亨胡仙誇大虎報銷量
人大第一次釋法
1999年1月
終審法院裁定，港人在內地所生子女應有居留權，法官在判決中提到若人大的決定抵觸基本法，終院有權裁定無效
1999年2月
新華社引述有「四大護法」之稱的基本法起草委員蕭蔚雲、邵天任、許崇德和吳建璠，抨擊終院「實際上是把香港變成為一個獨立的政治實體」，表示不能容忍終院「肆意挑戰全國人大及其常委會的權力」
1999年2月
梁愛詩上京面聖後，返港即史無前例提出申請，要求終審法院澄清關於人大常委會的判決，終院屈服
1999年6月 人大應港府要求釋法，肯定《入境條例》合憲，沒有違反基本法，推翻終院判決
1999年6月 超過600名法律界人士遊行，抗議釋法決定。
人大第二次釋法
2004年4月 人大主動釋法表明，政改要得人大支持，否定了港人政改自決權，人大最後否決07、08雙普選
人大第三次釋法
2005年4月 董建華辭職，曾蔭權主動提請釋法，要求人大確定補選特首的任期，引發900名法律界人士及市民抗議
「三權合作論」
2008年7月 中共領導人副主席習近平訪港，罕有點評香港司法制度，提出「三權合作論」，要求「行政、立法及司法三個機構互相理解，互相支持」
曾蔭權「濫用司法程序論」
2011年5月 公民黨律師協助東涌居民提出司法覆核，嘗試推翻港珠澳大橋環評報告，曾蔭權不點名抨擊公民黨，以環保之名濫用司法程序阻撓基建工程
終審法院主動要求人大第四次釋法
2011年8月
終院破天荒主動尋求人大釋法，要求人大解釋香港是否須要跟隨中國實行外交豁免權。時任終院法官包致金反對尋求釋法，認為一國兩制之下，香港法庭未必須緊隨中央，惟終院最後以三票贊成、兩票反對，通過尋求釋法
2012年5月
包致金出席記協晚會，指法官判案時，不應該「為恐怕被再詮釋而尋求某種詮釋」（to seek an
interpretation for fear of a re-interpretation），對主動尋求釋法的批評，呼之欲出
港區人大施壓 要求釋法
2012年3月
30名港區人大代表聯署建議人大常委會，研究以釋法解決雙非問題，向政府施壓。
梁愛詩批評香港法官不認識中港關係
2012年 10月 基本法委員會副主任梁愛詩，指責終院在99年就居港權一案判決，說終院無權宣佈全國人大及常委會行為無效或違反《基本法》，批評法官對中央和特區關係缺乏認識。她又指解決雙非孕婦問題，人大釋法是唯一解決辦法。
2012年10月 終院常任法官包致金退休前，指香港法治將面對空前猛烈的風暴（I
see clouds of a storm of unprecedented ferocity.）
包致金臨別講話全文
司法機構10月24日為終審法院常任法官包致金舉行告別儀式。以下是他出席儀式後會見傳媒的足本講話*。
(Q: elaboration of storm
cloud)
There
were talks about reinterpreting a decision of the courts of long standing. That
is one specific matter. And the atmosphere created by the mere fact that this
cause of being made, would constitute the rest of it.
(Q: Elsie Leung criticizing
the judges)
Well
there were things being said even before Ms. Leung spoke. Ms Leung has
expressed her views, which is perfectly entitled to express. But equally people
who had disagreed with her, are perfectly entitled to express their
disagreement. I happen to agree them.
(Q: whether Leung's
comments would affect the judges)
I
don't think so. I have faith in them to decide independently. Sometimes
something has to be taken on faith. I know the judges. And other people don't.
So I’m not going to insist that I’m right. And those people who worry are
wrong. But time will tell. And i think the judges will do the right thing.
(Q: whether independence of
justice is being jeopardized)
No.
She expressed her view. You can't jeopardize the independence of justice in Hong Kong, simply by expressing
these views. If her views were acted upon, the situation might be different.
But people can say what they like. Justice would be very delicate if it was
jeopardized every time somebody says something.
(Q: Leung saying she has
freedom of speech)
I
think that she did have the right to say it. People who disagree with her have
the right to express disagreement. And as I said, I happen to agree with them
very firmly. But I don't think we can say that she wasn't untitled to say it.
The wisdom of it is a matter of whom to judge. But if you choose to say it,
then you're entitled to say it. Free speech is very easy to give other people
if you only give them free speech to say what you agree with. But it's often
been said by generations of judges, that you truly believe in free speech, if
you're prepared to ( ) it, to the
people whose views who profoundly disagree with, and which you even think are
dangerous, this is what free speech is about.
(Q: CJ's reaction)
I
suppose it's a bit difficult for him. We have to see what he does. Some people
might have wished he would express himself more firmly. Some people think the
calls he took was wise. It's for him to judge.
(Q:
Leung saying judges have made some mistakes)
[smile]I
believe she thinks we have. But we haven't.
(Q: Leung emphasizing
judges should consider the relationship between HONG KONG and China)
No
judge can fail to consider the relationship, when the relationship is the one
under the one country two systems principle.
(Q: storm cloud)
I
describe it as clouds of storm of unprecedented ferocity. I chose those words
carefully. I think that's exactly what it is. But if your faith in rule of law
is only when there are no problems, then you have no faith in rule of law at
all.
Remember
that the free media is itself a very powerful component, may be the most
powerful component in the defense of rule of law. So you're not just
bystanders, you're the major players, may be THE most important player in it. I
feel sorry of people who just sit and worry about it, but they don't include
you. You're the free media and you have voice. You should use your voice.
(Q: about CY Leung)
People
of Hong
Kong understand their rights. And I don't think things have changed. I don't
think things would have been any different if there have been a different chief
executive. The commitment of the people to rule of law and freedom of HONG KONG is unshakable.
(Q: whether judges no
longer dare to give independent judgment like you)
No,
I have no reason to doubt their courage. We have seen things differently. And I
am sorry that I won't be there with them in times ahead. After midnight tonight I’ll be
non-permanent judge. I suspect the cases they ask me to deal with will not be
those type of cases. After all if they want me to deal with those cases, they
will ask me to stay on. Therefore I won't be share these difficulties with my
brothers and I’m sorry for that. But I have faith in them.
(Q: storm cloud)
I
think the storm cloud comes from anybody, whether he or she may be, who doesn't
appreciate the one country two systems principle. Now why was this principle
necessary to be clear? Once the handover took place, it would be one country.
Nobody would have articulated the one country principle, because it's so
obvious. The one country two systems principle design, is to emphasize that
despite the fact as one country, it is two-systems.
I
don't think that I’m interested in identifying particular individual for where
they come from. If you do not understand this principle, and everything it
means to the ordinary people of Hong Kong, then you're generating
the storm that I’m talking about.
(Q: are there more people
disrespecting the principle?)
No
I don't think it's drawing in numbers. May be they're raising their voices more
than before. I don't think it's more people. In fact I think there are more
people now who respect the system than when I started (my career), simply
because some people who were born when I started have now grown up to the age
of knowledge and understanding. So the number of people that understands the
system and the rule of law has grown, not diminished.
(Q: about dismissal)
Who
knows? I give my judgment. I don't want to speculate. If I was denied, that
I’ve in fact been dismissed, then some people would say, what if his denial is
wrong, either because he is saying that he hasn't been dismissed even though he
has, or because he believes that he hasn't been dismissed when he has?
Supposing(ly) I just denied that, it wouldn't be a good idea.
So
let me say this. If you don't think it's a problem, that's the end of it. If
you think that it's a problem, then whether you're member of the media, the
profession or the academy or anything else, that should not diminish your
determination to uphold the rule of law. That should increase your
determination.
Let’s
not worry about what has happened to me. Let’s just say, assume the worst if
you like. That doesn't diminish your duty to uphold the rule of law. It
increases your duty to uphold the rule of law.
You're
the media. You have a role to play. Therefore you're the farthest to worry
about than anybody else. People who feel powerless would just feel that they're
tossed in winds of events. But you people make things happen. So don't be
discouraged.
If
you think there's any problem that should increase your determination to
support the judiciary. If you think there's no problem, that's fine. If you
think there's a problem, you have to support the judiciary more than before. I
have great faith in the judges.
(Q: feeling of retirement)
I’m
sorry to go. I will be going to active retirement and it does give more time
for the family. I’m not unaware of the positive sides of it, but on the whole
I’m sorry to go. Mainly because there may be problems and I will be on the
sidelines. It would not be pleasant not to be there for the most difficult
times. But whatever happens it happens.
(Q: interpretation of Basic
Law)
The
duty of the court to seek an interpretation is laid down by the Basic Law. And
the basic law contemplates that the court will discharge that duty. And the
court should discharge that duty in those cases where an interpretation is
sought. But if the court doesn't seek an interpretation, then i think seeking
reinterpretation is fundamentally wrong.
(To
media)Thank you very much. Continue to do your good work.
(Q: few words to the
public)
We're
very lucky to have free media in HONG KONG.
