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In
Unfortunately this agreement did not meet with universal approval. December 1991, this Council passed a motion in favour of greater flexibility in the appointment of overseas judges to the CFA. This motion was based on the assertion that the 1991 JLG agreement was inconsistent with the Joint Declaration and the Basic Law. However, this assertion which has been repeated today by Mr Martin Lee is not correct. The Attorney General will elaborate on the legal arguments later. All I will say now is that it is frankly inconceivable that the 1991 agreement would have been made if either Government had believed it to be inconsistent with the Joint Declaration and the Basic Law. We believed at that time, and we still firmly believe now, that the agreement is fully in accordance with the Joint Declaration and the Basic Law.
Much has happened since December 1991. The Chinese side have made it clear, both publicly and privately, that they are not prepared to re-negotiate the 1991 agreement, and that a CFA set up on any other basis will not survive 1997. But, so far as I am aware, there is universal agreement that we should if at all possible set the CFA up before 1997. Accordingly, the Administration remains convinced that it would be in the best interests of Hong Kong to stand by our commitment to establish the CFA before 1997 on the basis of the 1991 agreement. We therefore strongly support Mr Jimmy McGregor's motion.
Mr Moses Cheng and Mr Martin Lee have both proposed deleting the last part of the motion which refers to the 1991 JLG agreement. As I have said, the Administration is committed to establishing the CFA on the basis of the 1991 agreement. Not only is the agreement consistent with the Joint Declaration and the Basic Law, but it is, as Members of this Council know well, the only realistic basis on which the CFA can be set up before 1997. It is, in other words, the only basis for the early establishment of the CFA that both Mr Cheng and Mr Lee - and, I am sure, other Members of this Council - wish to see. So the ex-officio members will vote against both these amendments, and I call upon other members of the Council to do the same.
The present position
Mr McGregor's motion urges the Government to set up the CFA at the earliest opportunity. That is, and has always been, our aim. As members will know, we have drafted a CFA Bill, which we handed to the Chinese side on 5 May last year. We also sought the views of the legal profession on the draft Bill last November. Both the Bar Association and the Law Society supported the establishment of the CFA before 1997. Both also suggested a number of technical amendments to the Bill. We considered these very carefully, and accepted some of them. These we handed to the Chinese side in January.
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