Comments complement those of Governor

I REFER to your front page article published in yesterday's South China Morning Post postulating an apparent 'contradiction' between my comments and those of the Governor concerning Lu Ping's remarks on the question of continuity post-1997 of judges serving on the Court of Final Appeal ('the CFA').

May I say, first of all, that not only is there no substance to your editorial interpretation of a 'contradiction', but the Government position is in point of fact both simple and straightforward. Indeed, my reported comments appearing in the text of the article (which I repeat below) reveal no such inconsistency.

You will appreciate that my observations were made at the conclusion of a luncheon speech delivered by me to the Hong Kong Public Administration Association on the wholly unrelated topic of the work of the China Law Unit of the Legal Department.

My comments were made specifically in answer to media questions as to whether Lu Ping's remarks might jeopardise the prospects of enactment of the CFA Bill. You will also appreciate that I took pains, at the outset, to qualify my response by saying that I did not fully understand either the precise meaning or the detailed implications of Mr Lu's remarks. Compare the Governor's remarks on Sunday, December 11 that, 'we'll be discussing the Court of Final Appeal in the meeting of the JLG which is taking place this week in London and, obviously we'd like to have clarifications of that remark'.

I thereafter proceeded to say that if Mr Lu were merely talking about the rights under the Basic Law of the Hong Kong Special Administrative Region ('the SAR') appointing its own judges, then I did not have a problem accepting that proposition since I would not regard Mr Lu's statement as a remark to the effect that each individual judge would be vetted for various different considerations, political or otherwise, after 1997. I further explained that if Mr Lu were referring to a nominal re-appointment of judges, involving such procedures as the taking of a judicial oath of loyalty vis-a-vis the SAR after July 1, 1997 so as to enable them to continue serving on the bench, then that would not be a violation of the Basic Law.

I rounded up my comments by saying that what I found reassuring about Mr Lu's remarks is that he took the view that the CFA should be set up before 1997 and, if it were set up in a manner consistent with the Joint Declaration and the Basic Law, then the Court as an institution together with its rules, regulations and other machinery would survive beyond 1997. I concluded by saying that I considered the foregoing principle of the CFA's survival and continuity to be very important. Compare that with the Governor's remarks on Sunday that 'I was pleased that Director Lu underlined the importance of the 1991 Agreement on the Court of Final Appeal.' What I did not explore in my answers to the media was whether, if Mr Lu's remarks should be understood as extending beyond the question of merely nominal re-appointment of judges to continue serving on the CFA, then such a process would violate Basic Law Article 93. I did not need to do so since, first of all, the obverse implications of my comments are plain and, secondly and more importantly, the Governor has already spoken on that particular issue on Sunday by observing that, 'if Chinese officials were to say that Article 93 no longer applied, it wouldn't have just an impact on recruitment of judges in the future, it would have an impact on the whole rule of law'.

I agree wholeheartedly with those observations. Hence the need, as the Governor remarked on Sunday, for clarification by the Chinese Government at JLG XXXI scheduled to take place in London later this week.

Hence also the Director of Administration Richard Hoare's remarks on Tuesday night, as reported in your paper that the Government accepted the need for a re-appointment procedure as stipulated under the Basic Law since 'the day he (Mr Lu) first commented about the Court of Final Appeal he did not seem to be acknowledging the article (93) at all. That's why the Governor made a statement.' In conclusion, I suggest that not only is there no 'contradiction' between my comments and those of the Governor, on the contrary, mine complement precisely those of the Governor. Finally, may I say that I share fully the Governor's hope that the Chinese Government will provide a positive clarification of their position at JLG XXXI in London later this week.