CONFIDENTIAL
XCX(91)61
amendment which permits greater international participation in the CFA will not be accepted by the Chinese; that the National People's Congress (NPC) can pass a law on the establishment of the CFA; and that the CFA, if established without the consent of the Chinese authorities, will not be maintained after 1997.
The Administration's Assessment
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The Administration is of the view that any bill establishing the CFA on the four local to one overseas judge formula agreed with the Chinese will not stand any chance of securing passage through the Legislative Council if put to it now. All LegCo Members who are lawyers support the position of the two legal bodies. The United Democrats of Hong Kong members in LegCo are keen to use this issue to force a confrontation with the Administration, and China, over the role of the Legislative Council in vetoing agreements reached at the JLG. The more independently minded Members may be less certain of the merits of an all-out approach to seek greater flexibility in the composition of the CFA, but they are likely to feel obliged by the weight of the opinions expressed against the JLG agreement to reject or abstain from supporting the bill introduced by the Administration.
The Way Forward
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In the circumstances the following options are open to the Administration -
(a) to put the plan to establish the CFA in accordance with the JLG agreement on ice; and to resurrect it nearer 1997 in the event of a change in opinions; to re-open the JLG agreement with the Chinese with a view to persuading them to agree to greater flexibility of composition;
(b)
(c)
to introduce into the Legislative Council a bill incorporating a compromise proposal acceptable to LegCo (eg. the formula advocated by Mr Denis Chang, QC, former Chairman of the Hong Kong Bar Association, whereby the Court would be established in 1993 with a flexibility to appoint two overseas judges, on the understanding that the legislation would be amended to bring it into line with the JLG agreement by 1997);
Executive Council