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Point 4 of the agreement sets out the Chinese side's agreement to the Court of Final Appeal Bill and also their agreement that the legislative procedures for the Bill should be taken forward immediately to enable them to be completed as soon as possible before the end of July 1995. This guarantees that the Court of Final Appeal to be set up on 1 July 1997 will be in accordance with the Bill now before this Council. This Bill is based on the principles and practices of the Judicial Committee of the Privy Council. Its early enactment will end the uncertainty about the form of the Court of Final Appeal to be set up in Hong Kong, which has had a damaging effect on public and international confidence in the judicial system. It will help maintain that public and international confidence in the Court of Final Appeal and in our judicial system as a whole.
I am pleased that some Members of this Council have already expressed their support for the agreement we have reached with the Chinese side. including the early enactment of the Bill within the current session. However, a few Members have queried some aspects of the agreement. I wish to respond to these queries, with particular reference to the relevant provisions in the Hong Kong Court of Final Appeal Bill.
Jurisdiction of the CEA
First I would like to discuss the proposed jurisdiction of the court and to refute the suggestion that we are restricting the jurisdiction of the Court of Final Appeal by including in the Bill the formulation of "acts of state" in Article 19 of the Basic Law. Frankly, I do not understand the logic of this argument, which is devoid of any legal merit. It is, as the Governor has said, a red herring.
Clause 4 of the Bill reflects Article 19 of the Basic Law by providing that the court shall have no jurisdiction over acts of state such as defence and foreign affairs. It has been alleged that the provision is the result of a concession by the British side of the Joint Liaison Group. This allegation has no foundation whatsoever.
Indeed, Mr President, it is strange that when we propose to align the Court of Final Appeal Bill on this point with the Basic Law, we are accused of kowtowing. But when others propose to amend the Bill to align it with the Joint Declaration and the Basic Law then that becomes a matter of principle.
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