نيا
3
WEDNESDAY, DECEMBER 4, 1991
MUCH OF THIS DEBATE HAS FOCUSED ON WHETHER OR NOT THE AGREEMENT REACHED IN THE JOINT LIAISON GROUP ACCORDS WITH OR IS IN BREACH OF THE BEING A SERIOUS JOINT DECLARATION. THE AGREEMENT IS ATTACKED AS
MR DEPUTY PRESIDENT, I WILL NOT EROSION OF JUDICIAL INDEPENDENCE.
CLASH OF LEGAL WEARY THIS COUNCIL THIS EVENING BY REHEARSING THE OPINIONS. ANNEX I, PARA III, SUB PARA 4 TO THE JOINT DECLARATION, A LAW, PROVIDES PROVISION MIRRORED EXACTLY BY ARTICLE 82 OF THE BASIC THAT THE COURT OF FINAL APPEAL IN THE HONG KONG SPECIAL ADMINISTRATIVE REGION MAY, AND I QUOTE, "AS REQUIRED INVITE JUDGES FROM OTHER LAW JURISDICTIONS TO SIT ON THE COURT OF FINAL APPEAL".
THAT THE COURT PROVISION DOES NOT SAY, - DOES NOT SAY REQUIRES" INVITE OVERSEAS JUDGES; IT SAYS THE COURT "MAY AS INVITE SUCH JUDGES. THIS IS CLEARLY AN OBJECTIVE TEST AND GIVE AN UNFETTERED DISCRETION TO THE COURT TO INVITE AS MANY JUDGES TO SIT ON IT AS IT WISHES.
IT
COMMON BUT THAT
AS **MAY
REQUIRED" DOES NOT VISITING
OTHER
ALL
IF THE DISCRETION OF THE COURT OF FINAL APPEAL TO INVITE COMMON LAW JUDGES WERE UNLIMITED, IT WOULD MEAN THAT AFTER 1997 THE JUDGES IN THAT COURT OF FINAL APPEAL COULD CONSIST OF JUDGES FROM OTHER COMMON LAW JURISDICTIONS. IT SHOULD BE CLEAR TO MEMBERS THAT THE DISCRETION OF THE COURT OF SUCH A SITUATION WOULD NOT BE TENABLE. FINAL APPEAL WAS NEVER INTENDED TO BE AN UNLIMITED ONE. OBJECTIVE TEST AND IT IS ONE WHICH IT IS PROPER FOR THIS ΤΟ PROVIDE FOR IN THE LEGISLATION CONSTITUTING THE APPEAL.
IT IS AN LEGISLATURE COURT OF FINAL
OVERLOOKED.
MINIMUM
IT IS
THERE IS ONE MORE IMPORTANT FACT THAT MUST NOT BE NOWHERE IN THE JOINT DECLARATION, OR IN THE BASIC LAW, IS A NUMBER OF JUDGES, OR INDEED ANY NUMBER OF JUDGES, SPECIFIED. THEREFORE ENTIRELY PROPER AND INDEED NECESSARY FOR THESE DETAILS TO BE FILLED IN BY THIS COUNCIL BY MEANS OF AN ORDINANCE.
IN
AN KNOW,
INTERNATIONAL THE JOINT DECLARATION IS, AS WE ALL
102 OF THE TREATY
AT REGISTERED
THE UNITED NATIONS UNDER ARTICLE UNITED NATIONS CHARTER. INTERNATIONAL TREATIES ARE INTERPRETED NOT IN
LAW BUT RESTRICTIVE ACCORDANCE WITH
PROVISIONS OF NATIONAL ACCORDANCE WITH INTERNATIONAL LAW AS CODIFIED IN THE VIENNA CONVENTION ALREADY MR MAN SAI CHEONG HAS VERY HELPFULLY ON THE LAW OF TREATIES.
WILL REMIND MEMBERS SPOKEN ABOUT ARTICLE 31 BUT FOR CONVENIENCE I
RULE AGAIN WHAT THAT SAYS; ARTICLE 31 OF THE CONVENTION SETS OUT THE
ACCORDANCE WITH THAT A TREATY SHALL BE INTERPRETED IN GOOD FAITH IN
IN THE ORDINARY MEANING TO BE GIVEN TO ITS TERMS IN THEIR CONTEXT AND
THE SAME ARTICLE ALSO THE LIGHT OF ITS OBJECT AND PURPOSE.
THE THAT THERE SHOULD BE TAKEN INTO ACCOUNT, TOGETHER WITH
BETWEEN THE PARTIES REGARDING THE ANY
AGREEMENT SUBSEQUENT INTERPRETATION OF THE TREATY OR THE APPLICATION OF ITS PROVISIONS.
PROVIDES CONTEXT,
I
JOINT LIAISON APPLYING THESE RULES OF INTERNATIONAL LAW THE GROUP AGREEMENT ON THE COMPOSITION OF THE COURT OF FINAL APPEAL IS. BELIEVE, CONSISTENT WITH THE JOINT DECLARATION.
IN
TAKE ISSUE
SUMMARY, MR DEPUTY PRESIDENT, ON THIS ISSUE, I
OF THE WITH THE VIEW THAT THE AGREEMENT CONTRAVENES THE PROVISIONS
A REACHED IN
MANNER HAS BEEN JOINT
THE AGREEMENT DECLARATION. CONSISTENT WITH THE ORIGINAL INTERNATIONAL TREATY AND IS IN ACCORDANCE WITH ITS PROVISIONS, WHEN THESE ARE PROPERLY INTERPRETED.
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