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There is also a clear consensus that the court must be established in alignment with the Joint Declaration and the Basic Law. However, there is agreement now, as there was in December 1991 as to whether the Court of Final Appeal should also be consistent with the agreement reached in the Joint Liaison Group in September 1991. Before I address the arguments against that agreement, let me make it quite clear that the Hong Kong Government cannot responsibly ignore or advise this Council or the community to treat as non-existent an international agreement binding on the two sovereign powers responsible for our transition.
Those who disagree with the 1991 JLG Agreement, rely on two main arguments. The first is that they consider the 4 plus 1 composition of the court, provided for in the JLG agreement, as a poor composition. They would like the court to have greater flexibility to invite overseas judges to sit on the court. That may be so. But the inescapable fact is that the JLG agreement cannot be renegotiated, as we have made plain on more than one occasion. Moreover, the 4 plus 1 composition is a perfectly acceptable way of implementing the provisions of the Joint Declaration and the Basic Law that provide for judges from other common law jurisdictions to sit on the Court of Final Appeal. It will enable the court to benefit from the experience of eminent overseas judges in particular cases, and will assist in maintaining the links between our own legal system and other common law jurisdictions. There is no merit, there is no merit, in rejecting the JLG agreement simply because some would prefer the court to be able to invite more than one overseas judge to hear any particular case.
Several members have commented on the quality of the judges of the Court of Final Appeal by way of comparison with the judges of our present Court of Appeal. Their remarks may be regarded by some as being somewhat derogatory. I strongly deprecate any remarks which may have the effect of cheapening or devaluing the Court of Appeal. Such remarks are inappropriate, since they may have the effect of lowering the public's confidence in our courts. Some members have pointed out that the judges of the Court of Final Appeal are likely to be drawn from the Court of Appeal. They suggest that the absence of a Court of Final Appeal should not therefore create any problem as the Court of Appeal will simply act as the highest appellent court. Mr President, this argument is seriously fraud. In other common law jurisdictions, it is usual for the judges of the highest court to be drawn from the court below, so that judges and the Privy Council are drawn from the English Court of Appeal. That does not mean that those jurisdiction could simply do without the highest court. The strength of the judiciary in any jurisdiction depends not only on the quality of its judges, but also on the system of appeals. The existence of an appellate court above the first court of appeal makes it possible for points of law of public importance to be identified precisely for the legal arguments about them to be fully refined and for the second appellate court to reach a decision that create a binding precedent for lower courts including the first court of appeal. It is therefore quite wrong to suggest that the Court of Appeal would be an adequate substitute for a Court of Final Appeal.