THE post-1997 government has the right to re-appoint judges, despite a Basic Law provision allowing judges to remain in office after the change-over, senior Chinese official Lu Ping said yesterday.
Mr Lu, director of the State Council's Hong Kong and Macau Affairs Office, said the Special Administrative Region (SAR) would introduce measures for the re-appointment of judges.
He said: 'The Basic Law does provide for the judges to stay in office, but the questions are how they are going to stay and what procedures should this involve?' Unlike the setting up of the first SAR Government and legislature, the judiciary's transition was not backed by any National People's Congress decision.
The lack of clarity in the Basic Law meant the SAR Government would have to come up with its own procedures, he said.
Mr Lu was elaborating on comments on Saturday that the Basic Law did not guarantee the judiciary a 'through-train'.
Those remarks, at the closing of the Preliminary Working Committee plenary session, prompted Governor Chris Patten to say the lack of a through-train threatened the rule of law.
Article 93 of the mini-constitution stipulates judges and other members of the judiciary serving in Hong Kong before 1997 remain in employment and retain their seniority with pay, allowances, benefits and conditions of service no less favourable than before.
But Article 88 says judges should be appointed by the Chief Executive on the recommendation of an independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors.
Leader of a delegation of representatives from 14 overseas business associations in Hong Kong, Paul Cheng Ming-fun, quoted Mr Lu as saying the judiciary structure could be maintained, but judges must be re-appointed.
Mr Cheng said he hoped there would not be serious problems in the process of re-appointment, but the matter should be handled by the SAR Government.
A local delegate to the Chinese People's Political Consultative Conference, Chow Charn-ki, said Mr Lu's remarks did not contradict the Basic Law.
It was impossible for China to take on the present judicial personnel in full if it considered some of them unacceptable, he added.
The actual outcome might be little or no change, Mr Chow said, but Mr Lu wanted to reiterate that the SAR Government reserved the right to screen judges.
He said to ensure that judges could straddle 1997, both sides should discuss the appointments ahead of the changeover.
Discussion of judges' appointments would not undermine judicial independence because the present system - under which the Judicial Service Commission is to make recommendation on appointees - was also a kind of vetting procedure, Mr Chow said.