CONFIDENTIAL
XCX(93)34
24
A related issue is the role of the Judicial Service Commission in relation to the appointment of judges to the CFA. At present, the Commission has only an advisory role in respect of judicial appointments. JD 63 provides that judges of the Hong Kong SAR shall be appointed by the Chief Executive "acting in accordance with" the recommendation of an independent commission composed of local judges, persons from the legal profession and other eminent persons. BL 88 provides that judges shall be appointed "on the recommendation of" such a commission. Although the latter could be interpreted as giving the Chief Executive the power to ignore a recommendation, it is suggested that it should be interpreted so as to be consistent with the JD. It is therefore considered that, after 1997, the Chief Executive will be required to implement the recommendations of the independent commission. As part of the gradual move towards implementing the post-1997 procedures, it is recommended that appointments by the Governor to the CFA before 1997 should also be made in accordance with the recommendations of the Judicial Service Commission.
(b) Removal of Permanent Judges
25
JD 65 and BL 89 provide that judges of the SAR courts may only be removed for inability to discharge their duties, or for misbehaviour, by the Chief Executive on the recommendation of a tribunal appointed by the Chief Justice of the CFA and consisting of not fewer than three local judges. The Chief Justice of the CFA may be investigated only for inability to discharge his duties, or for misbehaviour, by a tribunal appointed by the Chief Executive and consisting of not fewer than five local judges and may be removed by the Chief Executive on the recommendation of the tribunal. In addition, BL 90 provides that the Chief Executive shall obtain the endorsement of the Legislative Council for the removal of judges of the CFA and report the removal to the Standing Committee of the NPC.
26
We have recommended that the Legislative Council should not be given a role in endorsing the appointment of CFA judges before 1997 (paragraph 23 above). Similarly, we do not recommend that the Legislative Council be given a role in the removal of the judges prior to 1997. The removal procedure envisaged in the JD and the BL, involving endorsement by the Legislative Council and reporting to the NPC, should be activated only after the BL has entered into force on 1 July 1997.