CONFIDENTIAL
26/8/11
8.
Advice from the Ministry of Overseas Development supports Sir James McPetric's view that the occasional appointment from the Ber (as distinct from widespread appointments in furtherance of "localisation" policies) would not give members of the Legal and Judicial Service cause to claim compensation for loss of career prospects. Such appointments have taken place in a number of overseas territories, although infrequently and in very small numbers, In Nigeria, for example, Mr. Justice Graham Paul (an expatriate member of the Nigerian Bar) was appointed to the Bench long before "localisation"
policies were adopted.
9. The Ministry of Overseas Development have also drawn attention
to the special pension provisions in Sections 10 and 11 of the West Indies Federal Supreme Court (Salaries and Pensions) Act, 1960 for
non-Service appointments to that Court. These are summarised in
Annex I. The ODM have pointed out that these more beneficial pension
arrangements were applicable to all judges, the eventual pensions of Service judges being reduced by the amount of any other pension due in respect of previous public service.
10. This department agrees with the views of Sir James McPetrie and considers that the Governor should be asked to accept the principle of the occasional appointment from the Bar. It is considered, however,
that, given the need for consultation in Hong Kong as stated both by Sir Michael Gass (Annex G) and by Sir Michael Hogan (Annex H), the matter should not during the Minister's visit be pursued further than
an intimation to the Governor that we will be putting to him formally the full case for this, with indications how the objections in Sir Michael Gass's letter of 28 November might be met.
Interchangesbility between members of the Legal Department and the
Judiciary
11.
Interchange between the Legal Department and the Judiciary tends
to blur the distinction between the Executive and the Judiciary and to
detract from the appearance of an impartial Judiciary; this is the
ground on which objection can be raised to the practice. On the
other hand it is arguable that it would be wrong to bar from judicial appointments officers of the Legal Department who show real aptitude
for judicial work.
CONFIDENTIAL
/ 12.