Page7
CONFIDENTIAL
XCX(91)61
17
(e)
will entitle the Judicial Service Commission (JSC) to advise on permanent judicial appointments for the CFA and the Legislative Council to endorse such appointments, as provided for in the JD and the BL. The Chief Justice will take soundings from the UK Lord Chancellor's Department of the possibility of recruiting an eminent overseas jurist to sit on the CFA (to be appointed initially to the Court of Appeal, in view of our agreement with the Chinese that permanent judges of the CFA are to be drawn from the High Court or the Court of Appeal of Hong Kong or barristers who have practised ten years in Hong Kong). As the criticisms expressed have been concerned mainly with the lack of flexibility of the agreement on composition, members of the legal profession, the Legislative Council and the business community have not focussed on the comprehensive provisions for preserving the independence of the CFA under the JD and BL which can be built into the arrangements establishing the CFA. We have not yet begun to explain these arrangements; and we do not give up hope of persuading the legal profession and LegCo Members of the merits of our package in due course; and
as indicated in paragraphs 20 and 21 below the arrangements agreed are considered by our Legal Advisers to be in accordance with the JD. The Chinese interpretation of the meaning of the JD is not an unreasonable one.
For the motion debate on 4 December, the Government will take the line that -
(a)
(b)
(c)
흐르
the JLG agreement on the CFA is a good agreement which achieves the overriding objective of ensuring the early establishment of the CFA and its continuation beyond 1997;
the alternatives are all unpalatable;
we see no prospect of re-negotiating the agreement with the Chinese;
Executive Council