CONFIDENTIAL
XCX(93)34
21
As regards the Chinese side, they had in earlier discussions in the JLG said that "the appointment and removal of the Chief Judge and other permanent judges of the CFA should strictly conform to the spirit of the relevant provisions of the Basic Law". This cannot, however, be taken to mean that they would be prepared to equate endorsement by a pre-1997 Legislative Council as satisfying the BL 90 requirement of endorsement by the SAR Legislative Council. The Political Adviser and the Senior British Representative, JLG are quite clear that the Chinese will take such a view. Indeed, endorsement by a Legislative Council which China does not recognise, and which, to the Chinese, is full of ‘subversives' is likely to entail problems with the Chinese. It would be better to base our case for continuity and security of tenure on BL 93, which provides that "Judges and other members of the Judiciary serving in Hong Kong before the establishment of the Hong Kong Special Administrative Region may all remain in employment and retain their seniority with pay, allowances, benefits and conditions of service no less favourable than before”.
22
On the other hand, some Legislative Council Members would certainly want to know why endorsement by Legislative Council of the appointment of judges to the CFA is not to apply before 1997. There could be accusations from the Legislative Council that the Administration is not sincere in its pledge to set up the CFA before 1997 for the purpose of ensuring convergence with the BL. On the other hand, it could be pointed out to the Legislative Council that the appointment procedure envisaged in BL 90 would involve not only Legislative Council's endorsement of the judicial appointments, but reporting such appointments to the NPC before 1997 which is constitutionally unacceptable.
23
We conclude that the balance of advantages lies in not proposing to the Chinese the adoption of the appointment procedure under BL 90, or a modified version of it, before 1997. We therefore recommend that the Legislative Council endorsement procedure should not be written into the draft legislation at this stage, but that the position be reviewed in the light of the Chinese response.