31-OCT-1991 17:55
31-10-1991
POLITICAL ADVISOR OFFICE 14:56 GOV'T INFORMATION DEPT
+852 521 8702 P.02
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Full translation of a commentary by Pat Ho-lia Wen Wei Po, Thursday, October 31, 1991
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Headline: 'Three-legged stool' advocates go too far
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At tho request of the 'British side, the Chinese Government conducted serious 'discussions with their Britisn counterparts of che setting up of a Court of Final Appeal in HK by 1993. Agreement io principle was. reached on September 25. 'The results of the talks reflected the new developments in Sino-British co-operation and was beneficial to a smooth transition for BK. Public opinion in HK welcomed the agreement when it was announced, and the legal sector considered that the accord was acceptable. However, after the Governor's policy address on October 9, the winds changed in Victoria Harbour. There cane opposition to the agreement from important people. First, there was a joint statement from the heads of the two legal professional bodies. It was followed by a suggestion by more than half of the Legco members that the agreement was in breach of the Joint Declaration and the Basic Lay. They wanted the accord to be renegociated and threatened to create a "constitutional crisis" if this was not done. What a wave of opposition! The breaches alleged are really horrifying. However, che matter cannot be judged by one party alone, We must reason and seek justice.
In what way has the agreement on the Court of Final Appeal violated the Joint Declaration and the Basic Law? These people said the two documents stipulated that the Court of Final Appeal could invite judges from other Common Law jurisdictioas when necessary. They said this meant that the power, to invite foreign judges rested with the Court of Final Appeal and that there was- flexibility in the mumber va foreign judges to be invited. They alleged that the agreement had violated the Joint Declaration by specifying the number of foreiga judges, thereby removing the flexibility. These people said it should be stated that two foreign judges should be invited, lastead of one. Ah, which is why! Now, please read the provision agaiu: "The Court of Final Appeal in the Hong Kong Special Administrative Region may as required invite judges from other Common Law jurisdictions to sit on the Court of Final Appeal.” It is true that the power to invite foreign judges rests with the Court in Final Appeal. The Sino-British accord has not denied the Court such powers. There is fadeed flexibility for the Court of Final Appeal in exercising such powers. The flexibility lies in whether or not co lavite foreign-judges at all, and not in the number of foreign judges they invite. Whether they invite foreign judges to sit on the Court will depend on need. Court of Final Appeal can make its own decision on inviting a foreign judge. If there is no need to do so, the Court can decide against it.
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