Appeal Court bill should be put to Legco, says Ip
THE joint agreement limiting the number of overseas judges on the Court of Final Appeal should be presented to the Legislative Council even if members were to throw out the bill to enact it, said legal legislator Simon Ip Sik-on.
Mr Ip said the Government had an obligation to try to implement the joint accord, which allows for just one overseas judge on the five-member bench.
Officials from Xinhua (the New China News Agency) questioned the Government's sincerity in reaching a deal with China over future constitutional reform and cited the Joint Liaison Group agreement on the Court of Final Appeal.
The joint accord was struck in 1991 but, two years on, the draft bill on the court has not been tabled in Legco.
Mr Ip said: ''I think the Hong Kong Government has got to be seen to be making efforts to deliver its part of the bargain, which is to introduce legislation to implement the setting-up of the court. It can't just sit back and do nothing.
''They will have to see whether Legco will pass it or not. If Legco says 'No' [the Government] can say to China we have done everything we can. We can do no more. We have used our best endeavours, we cannot force Legco to endorse it.'' ''I think diplomatically that would satisfy the Hong Kong Government's obligation to try to implement the agreement.'' The joint agreement met stiff opposition from the legal profession and was subsequently voted down by Legco. It was seen as violating the principle of flexibility as allowed by the Joint Declaration and the Basic Law.
Bar Council chairman Jacqueline Leong said she would not like to see a court in place at all if it was not in line with the Joint Declaration and the Basic Law.
Executive Councillors said it was preferable to have a ''less than perfect'' Court of Final Appeal before 1997.
But Ms Leong said: ''One has got to ask whether the provisions, strict compliance with the provisions, of the Joint Declaration are important to Hong Kong.
''If the answer is yes, then it is a matter of such tremendous importance that Hong Kong cannot afford to abandon that principle simply in the interest of having an earlier court of Final Appeal.
''If the provisions of the Joint Declaration are considered so unimportant that they can be changed at will by the JLG, or if they can be ignored in the interest of expediency, then I think that it is a very dangerous prospect for Hong Kong.
''If one part of the Joint Declaration can be ignored, so can other parts.'' Ms Leong warned of a constitutional crisis if legislators amended the draft bill in a way so different from the JLG agreement that the Government declined to implement it.
Law Society president Roderick Woo Bun said the society would study the bill to see if it was possible to have the court established before 1997 without compromising on flexibility over the appointment of judges.
He stressed that it did not mean the Law Society was prepared to compromise.
Lawyer and China-appointed adviser on transitional matters, Liu Yiu-chu, said she hoped the bill could be passed in the coming Legco session with the court being set up next year.
She suggested the court's jurisdiction be limited to commercial disputes in the early stages. After 1997, its jurisdiction could be widened to cover all matters for appeal.