Change on selection of appeal judges attacked

THE power to select judges for the Court of Final Appeal (CFA) is to pass from the Governor to the Judicial Service Commission (JSC).

The change was announced yesterday by the Attorney-General, Jeremy Mathews, as he outlined the first details of the CFA Bill, which will be sent for consultation to the Bar Association tomorrow.

The Bill, which appears before Legco in the new year, was rejected three years ago by legislators as it only allowed for one foreign judge to sit on the five-person bench.

But legal chiefs and legislators feel the Bill will be passed by the Legislative Council this time as opposition to the 4:1 option is crumbling.

The increase in the power of the JSC is part of a package on judge selection and procedures that Mr Mathews hopes will be made law next year as a replacement for the Privy Council, which disconnects from Hong Kong on July 1, 1997.

Answering criticisms that the bench make-up will affect judicial independence, he said: 'The procedures in the bill for appointing all categories of judges [will] ensure that judicial independence is fully protected.' The five-person court will be made up of a Chief Justice, three permanent Hong Kong judges and one judge from a selected panel of non-permanent Hong Kong judges or from a list of overseas judges.

Mr Mathew's CFA Bill proposes that the JSC selects the three permanent Hong Kong judges, a function previously executed by the Governor with JSC advice, and that the Chief Justice, a Chinese national, to be selected by the Governor.

The non-permanent Hong Kong or foreign judge will be chosen by the chief executive from the new panel but they 'will only sit on the court when invited to do so', said Mr Mathews. There are no restrictions on their ages, whereas a Supreme Court judge must retire at 65.

Both Bar Association and Legco representatives condemned Britain and China for not being more flexible about the number of foreign judges on the CFA.

Legislative Councillor Martin Lee Chu-ming said: 'I was happy when the Basic Law in 1984 said the Court of Final Appeal may invite judges, in the plural, on to the bench. It was flexible, but I don't know what happened to make Britain and China come out with this miserable agreement.' Mr Lee is now looking to push an amendment through with the Bill allowing for more than one foreign judge to sit on any one case.

But he added that legislators might not support the amendment as 'some people are waiting for the chance to do a U-turn' on the vote three years ago.

Bar Association member, Michael Thomas QC, said he wanted to see more foreign judges but added that the establishment of the CFA before 1997 was more important.

He said: 'The bar should support having this court set up. It may not be perfect but that should not be the enemy of the good. We should encourage Legco to make the amendment and hope that China will let the court go on.' Dr Nihal Jayawickrama, law lecturer at Hong Kong University, said that should Mr Lee's amendment be made, the Bill would then adhere to the Basic Law and Joint Declaration.

And he added that the JLG decision to limit the foreign judges to one per case as 'completely against the Basic Law'.

He said: 'It is an ad hoc arrangement that should be in the hands of the courts and not in the hands of legislators. It is the height of appeasement by the British.' But Mr Mathews insisted: 'The Hong Kong Government's position is clear: the composition agreed in the JLG does not contravene the Basic Law.'