Up to Chief Justice to invite overseas judge
IN his letter on the Court of Final Appeal (CFA) agreement, ('Must try to make new agreement work', South China Morning Post, June 29), Mr John Barton argued in effect that although the agreement was not ideal, it was better than nothing and should be implemented.
I am grateful for his support, and that of the Hong Kong Democratic Foundation, but I would like to comment on a number of the points he raised.
Mr Barton stated that the 1991 Joint Liaison Group agreement restricted the number of overseas judges on the CFA to one judge, 'and maybe not even one'.
This is true, if he is talking about each particular sitting of the court, although there will of course be a list of non-permanent judges from other common law jurisdictions. Moreover, it will in each case be the decision of the Chief Justice whether or not an overseas judge is required and should be invited. So it is not clear why Mr Barton seems to believe that this composition is not consistent with the Joint Declaration.
The Government is in absolutely no doubt that it is.
Mr Barton also stated that 'The present proposals except from the Court of Final Appeal 'acts of state', which could cover pretty well anything.' It is of course the case that our courts at present have no jurisdiction over 'acts of state'. So that is not new. And the formulation of 'acts of state' in the Basic Law does not cover 'pretty well anything'.
It will still be for the courts to interpret the meaning of 'acts of state'.
They will only need to seek an interpretation from the Standing Committee of the National People's Congress in certain specified circumstances.
Mr Barton's third complaint was that the CFA should have been set up as much in advance of July 1997 as possible. The Government originally intended to set it up in 1992 or 1993 but, for reasons that are well-known, this proved not to be possible. At present, we could not possibly set it up before mid-1996 at the earliest.
So delaying its establishment until July 1, 1997 means a delay of 12 months at the most.
In return, we have obtained in the agreement guarantees that the CFA that will be set up then will be a proper CFA that, subject only to the Basic Law, has the same functions and jurisdiction as the Judicial Committee of the Privy Council.
That may be why the agreement has been welcomed by the Chief Justice, by the local and international business communities and - according to independent opinion polls - by the people of Hong Kong as well.
R. J. F. HOARE Director of Administration
