- 12.
F
"Passage of the Hong Kong Court of Final Appeal Bill will guarantee the establishment of a proper Court of Final Appeal on 1 July 1997 with Sino-British co- operation and in accordance with this Bill, which is based on the established principles and practices of the Judicial Committee of the Privy Council.
"The alternative of rejecting the Bill will leave the establishment of the Court of Final Appeal to the Hong Kong Special Administrative Region after 1 July 1997, creating damaging and unnecessary uncertainty about the eventual form of the Court of Final Appeal," he said.
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Mr Mathews pointed out that the major aim in ensuring continuity of the rule of law through the transition was to safeguard two key principles that the Court of Final Appeal should be a proper Court of Final Appeal and that there should not be a damaging judicial vacuum in 1997.
The agreement now concluded with the Chinese side on the Court of Final Appeal safeguards both these two points, he said.
He added that the Bill before the Council was based on the principles and practices of the Judicial Committee of the Privy Council, and that its early enactment would end uncertainty about the form of the Court of Final Appeal to be set up.
The Attorney General responded to three queries that had been raised against the agreement.
There was the suggestion that the jurisdiction of the Court of Final Appeal would be restricted by including in the Bill the formulation of "acts of state" in Article 19 of the Basic Law.
This argument is devoid of any legal merit and is, as the Governor has said, a red herring, Mr Mathews said.
He noted that as a matter of law, Article 19 of the Basic Law would operate as from 1 July 1997 and under its provision, HKSAR Courts would have no jurisdiction over acts of state such as defence and foreign affairs. The Hong Kong Court of Final Appeal Ordinance would come into operation on the same day and could not override the Basic Law.
"So as a matter of law, the jurisdiction of the Hong Kong Courts will be subject to Article 19. The recognition of this inescapable fact is not a concession, and nor does it restrict the jurisdiction of the courts further than is provided in the Basic Law," he said.