IN SPITE of the undisguised threats and recriminations of the Governor and his senior officials, legislators should be extremely circumspect in assessing the Court of Final Appeal Bill placed before them. For those who are clear in their minds that the restriction on the composition of the court imposed by the 1991 Joint Liaison Group (JLG) agreement is in breach of the Joint Declaration and the Basic Law, the position is simple. There can be no alternative but to reject such a bill. The situation is not much different for those who, though unwilling to go into lawyers' arguments about the technicalities, are nonetheless convinced that flexibility was expressly provided in the Joint Declaration and the Basic Law in order to ensure that the future Court of Final Appeal will be able to enjoy the same standing and expertise as the Privy Council, and that this is essential as a guarantee for the continuation of the common law system in Hong Kong. For them too, this bill must be rejected. For the rest, it will be a more complex exercise of balancing what they consider to be the advantages against the disadvantages. But for no one will it be right to accept this bill just because it has been sanctioned by yet another JLG accord. If a person is not prepared to accept the earlier version of the bill - the version before the incorporation of the eight points of the Preliminary Working Committee - because of the bill's internal defects, then he must ask if these defects are now removed. If they remain, or have become even more serious, then his position cannot in reason be any different from before. For it is not true that any Court of Final Appeal which is certain to survive 1997 is better than uncertainty. A bad CFA can be far worse than no CFA at all, since its defects will infect the entire judicial system. The present CFA Bill has been launched on the back of 'successful' Sino-British negotiations. The nature of the bargain, we are told, is that the British side agreed to postpone the establishment of the court until July 1, 1997, while the Chinese side agreed to have the court set up in accordance with legislation passed under the British administration. It is difficult to feel much respect for either side of the negotiation table, or place any value on its recommendation. On one side is a government which has gone all out to threaten its legislators and the legal profession that it is a matter of life and death to have the court set up before 1997, only to admit now that this is not at all essential, now that the other side would not give way. On the other side is a government which, as early as 1991, had agreed that the court could be set up before 1997 provided the JLG accord was implemented, only to insist now that there are insuperable obstacles on the principle of sovereignty, or some other reasons against the court being set up before that date, even if all the details about the court are agreed. After such blatant lies and retractions, is it any wonder that the unholy alliance between them is viewed with the greatest cynicism? The agreement has resulted in a worse bill in important aspects. One problem which is causing wide concern is the provision that 'the court shall have no jurisdiction over acts of state such as defence and foreign affairs'. The Governor Chris Patten tried to make light of it by presenting it merely as a technical problem of interpreting definitions, and by saying that, in any case, that formulation is in the Basic Law which will come into effect by July 1, 1997, anyway. But the public is not worried about just a lawyerly matter of interpretation. It is concerned that a person may lose all protection against the government. Under the rule of law which prevails now, the government is not allowed to do just what it likes. If it acts unlawfully to the detriment of a citizen, the citizen can seek redress from the court. What is feared is that, after 1997, the central government will be able to tell the Hong Kong court simply that what was done was an 'act of state', and the court will have to refrain from interfering. GIVEN such grave concern, it is of tremendous importance to the ordinary person that there is a clear definition of 'act of state'. It is no good for Mr Patten to say that it is in the Basic Law anyway. The British administration has all along realised that the formulation is problematic. The intention is said to be to have the legal system continue. That is not good enough if the letter of the law gives the opposite effect. Although it is almost a truism in English law that the court has no jurisdiction over an act of state, and that the court has to take the government's word as to whether an act was done as an act of state, the matter does not end there; far from it. In a 1970 case called Nissan vs Attorney-General, decided in the House of Lords, Lord Reid stated as the established principle of the common law that the government cannot just take away what belongs to a person (except in the case of acts committed abroad against a foreigner) and prevent him from seeking redress from the court by certifying that it was done as an 'act of state'. He agreed with what was said in an earlier case that 'between Her Majesty and one of her subjects there can be no such thing as an act of state'. Lord Reid has warned that the phrase 'act of state' has many meanings, and that a great deal of trouble has been caused by using that phrase loosely. Does the expression 'act of state' in the present bill have a clear meaning? The answer must be 'no'. To expand it to 'act of state such as defence and foreign affairs' does not help. Indeed, not all defence and foreign affairs are beyond the jurisdiction of the court at common law. If the meaning of the expression is not clear in itself, then how is the court to interpret it? Would it be with respect to English cases, which after 1997 will have no more than reference value? Or would it, since the expression is adopted from the Basic Law, become a matter of interpretation of the Basic Law, which by article 158 will be a matter for the standing Committee of the National People's Congress? Reading Lord Reid's speech in the 1970 case, one is also struck by the importance of judicial attitude. The judge in the common law system does not play a merely passive role. More than just bureaucratically pursuing the letter of the rules, he upholds the spirit of the rule of law. It therefore matters tremendously to the continuation of the rule of law as to how judges are appointed, and who are appointed judges. The present bill provides that the first chief justice and permanent judges of the Court of Final Appeal may be appointed from retired chief justices of the Supreme Court, retired justices of appeal and retired high court judges. Point five of the Sino-British agreement agrees that the 'team designate' of the Hong Kong SAR will 'participate' in the setting up of the court. Does this give any assurance that the first CFA will be other than political appointments? One group of people who were tempted to support the earlier bill so that the court may be set up before 1997 did so on the basis that judges appointed to that court, though not necessarily the most prestigious, will at least be more independent. That may or may not have been undue optimism, but even this reason is now gone. Fully aware of the unsatisfactory nature of the bill, the administration has to rely heavily on threats, 'it will be your fault if you do not accept the bill and Hong Kong is left with a judicial vacuum'. Really, not again, Mr Patten?