5. On the general principles of the scheme, we would like to probe your thinking behind it a little further. It is possible to take two different views of the scheme. First, one could argue that the scheme is too narrow. Are there not grounds for considering whether the total constitutional change in 1997 should entitle overseas pensionable officers to retire on pension and with compensation? In short, what is the justification for a limited rather than a comprehensive compensation scheme? In this connection it is noted that the general Civil Service scheme provides for eligibility for compensation if an officer is "permitted to retire on the grounds that circumstances make it unreasonable for him to continue in the Service". There is no
indication of the precise ambit of this provision but I can well imagine an argument that such a provision is equally applicable to judicial officers and that, for example, the circumstance that the courts do not have the final word on the interpretation on the provisions of the Basic Law constitutes such a change in the legal system as to make it unreasonable to expect them to continue to serve. On the other hand, one could also argue that the scheme is too wide. Why, for example, is there no operative date from which a judicial officer would not be eligible to benefit from the scheme? There is such a date in the scheme for the Civil Service. It is well known now that the circumstances of Hong Kong will change, that localisation is a general policy and that the two most senior positions must be filled by Chinese nationals. One could make a case that it is necessary to increase the number of expatriate judicial officers in the interim against the possibility that there may not be sufficient "local" officers available. If that is so, then the proposed scheme is not just a compensation scheme but an inducement scheme. It may then need further consideration. In these circumstances I wonder whether paragraph 6(a) of your letter is sensible. Agreement officers will be amply compensated, judging from paragraph 17 of the draft circular.
6. Against the background of the two different criteria governing eligibility under the Scheme (namely localisation and nationality), how defensible is it, seven years prior to 1997, (and when it is clear that the two chief judgeships will be reserved for Chinese nationals) to contemplate a position where those judgeships will be held, on the eve of 1997, by persons other than those who in 1997 will be Chinese nationals? Secondly, as regards ineligibility on nationality grounds, to what extent is it reasonable to postulate that a judge, however eminent, has a right to an expectancy to the office of one or both of the two Chief Judgeships? It is not impossible to imagine that one puisne judge after another will claim that by seniority he has a right to be appointed to one of those offices with the consequence that even on a limited compensation scheme, a whole series of judges will be eligible to benefit until one comes to the next Hong Kong Chinese judge on the list.
7.
With regard to paragraph 12, of the paper attached to your letter, we do not see how paragraph 1(c) can come into operation