7
J
WEDNESDAY, DECEMBER 4,
1991
ENTIRELY
OF INDEED ANY WILL NO ARE ANY
FUNCTIONS THAN AND INVIDIOUS
ON
THE SO-CALLED "FOUR-ONE" COMPOSITION OF THE ICFA IS AN WORKABLE FORMULA. IT WOULD IN NO WAY PREJUDICE THE INDEPENDENCE THE COURT IN THE EXERCISE OF ITS JUDICIAL POWERS. SUGGESTION THAT JUDGES IN HONG KONG, SOME OF WHOM HAVE AND DOUBT CONTINUE TO COME FROM OTHER COMMON LAW JURISDICTIONS, LESS INDEPENDENT IN THE DISCHARGE OF THEIR JUDICIAL UNSUPPORTABLE JUDGES ANYWHERE ELSE IS A TOTALLY ASSERTION. FURTHERMORE, I DO NOT BELIEVE THAT WE HAVE COMPROMISED
AT ANY MATTER OF FUNDAMENTAL PRINCIPLE. IT IS VERY CLEAR TO US, EVEN
OF A THE START, THAT A COURT OF FINAL APPEAL IN HONG KONG COMPOSED
PROPOSITION. THE MAJORITY OF VISITING JUDGES WOULD NOT BE A VIABLE PROVISIONS OF THE JOINT DECLARATION, WHICH IS A BINDING INTERNATIONAL TREATY, CANNOT AND SHOULD NOT BE INTERPRETED AS GIVING THE COURT OF TO FINAL APPEAL AN UNLIMITED POWER TO INVITE AS MANY VISITING JUDGES SIT
ON IT AS IT WISHES. TO ARGUE OTHERWISE IS TO PUT A GLOSS ON THE JOINT DECLARATION WHICH CANNOT BE SUPPORTED BY A PROPER INTERPRETATION OF THE RELEVANT PROVISIONS OF THE JOINT DECLARATION IN ACCORDANCE WITH MY COLLEAGUE THE ATTORNEY GENERAL THE CANONS OF INTERNATIONAL LAW.
THAT
REALLY DOWN TO A WILL ELABORATE ON THIS POINT LATER. SO WE ARE DIFFERENCE BETWEEN TWO VISITING JUDGES AND ONE VISITING JUDGE. CANNOT BE A MATTER OF FUNDAMENTAL PRINCIPLE.
AND I NOW TURN TO THE CONSIDERATIONS WHICH WE HAVE REGARD TO,
THE WORDING WHICH I URGE MEMBERS TO BEAR IN MIND ALSO IN THIS DEBATE. OF MR. IP'S MOTION IS DECEPTIVELY MILD: IT EXPRESSES A DESIRE FOR THE FLEXIBILITY COURT OF FINAL APPEAL TO HAVE MORE FLEXIBILITY, AND SUCH SHOULD BE IN ACCORDANCE WITH THE JOINT DECLARATION AND THE BASIC LAW,
WE
GREATER THE MOTION CALLS FOR A BUT LET US NOT FOOL OURSELVES.
THAT SUCH AN FLEXIBILITY
EMINENTLY CLEAR WHEN IT IS DEGREE OF
GREATER, AND OBJECTIVE IS UNACHIEVABLE WITHOUT SACRIFICING THE EVEN INDEED IN MY VIEW PARAMOUNT OBJECTIVE OF CONTINUITY AND CERTAINTY.
AFTER HAVE NOT COME LIGHTLY TO THAT CONCLUSION. WE REACHED THAT VIEW
THE MOTION IN EFFECT THREE YEARS OF HARD-SLOGGING NEGOTIATION. AMOUNTS TO A CALL FOR RE-NEGOTIATION OF THE AGREEMENT WHEN IT HAS BEEN PRIVATELY MADE ABSOLUTELY CLEAR TO US BY THE CHINESE GOVERNMENT, BOTH
COURSE OF PUBLICLY, FORMALLY AS WELL AS INFORMALLY, THAT SUCH A
A ACTION WILL NOT
INDEED I HAVE JUST COME FROM BE CONTEMPLATED. MEETING OF THE JOINT LIAISON GROUP, AT WHICH THE CHINESE SIDE HAVE
THAT THERE WOULD CLEAR MADE
BE NO QUESTION OF IT ABSOLUTELY RENEGOTIATION. SO WE MUST FACE THE QUESTION SQUARELY DO WE WISH TO APPEAL HAVE AN AGREEMENT WHICH ENABLES US TO HAVE A COURT OF FINAL
OR NO AGREEMENT, IN CAPABLE OF CONTINUING UNALTERED BEYOND 1997? WHICH CASE MAXIMUM CONTINUITY OF AN JUDICIAL SYSTEM ACROSS 1997 CANNOT BE ACHIEVED?
OF
AN
I BELIEVE THAT IT IS RIGHT FOR US TO STAND FIRM ON MATTERS FUNDAMENTAL PRINCIPLE. BUT THE ISSUE OF "MORE FLEXIBILITY" IS NOT ISSUE OF FUNDAMENTAL PRINCIPLE. WOULD IT REALLY BE RIGHT TO SACRIFICE SYSTEM FOR THE KEY OBJECTIVE OF MAXIMUM CONTINUITY OF OUR JUDICIAL
WOULD IT BUT NOT ESSENTIAL? SOMETHING
IS MERELY DESIRABLE, BUT NOT WHICH
AT RISK OUR REALLY BE IN THE OVERALL INTEREST OF HONG KONG TO PUT EFFORTS IN THE JOINT LIAISON GROUP TO SEEK AGREEMENTS WITH THE CHINESE VITAL TO THE CONTINUED GOVERNMENT IN MANY OTHER AREAS WHICH ARE
STABILITY AND PROSPERITY OF HONG KONG AND A SMOOTH TRANSITION? I DO NOT BELIEVE THAT WE SHOULD LET THE BEST BE THE ENEMY OF THE GOOD.
/THE MOTION