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In its statement, the Bar Association reiterates its objection to the 4+1 composition of the CFA for the hearing of any appeal "principally on the ground that the flexibility expressly provided for in the Joint Declaration (JD) and the Basic Law (BL) for the CFA as required to invite judges from other common law jurisdictions to sit was restricted so that for the hearing of any appeal, the court could only invite a maximum of one such judge". The British and Hong Kong Governments have not the slightest doubt that the 4+1 composition is a perfectly acceptable way of implementing the provisions in the JD and the BL that provide for judges from other common law jurisdictions to sit on the CFA. Our view that the 4+1 composition is consistent with the JD and the BL is supported by a number of authoritative independent legal opinions. Indeed the CFA Bill reflects this consistency. In Clause 5, which provides for the Constitution of the Court, sub-clause (3) includes the wording of the Joint Declaration and Article 82 of the Basic Law that "the Court may as required invite judges from other common law jurisdictions to sit on the Court". The 4 plus 1 composition is reflected in Clause 16(1) of the Bill, which specifies the composition of the Court when it hears a particular appeal.
The Bar Association also lists seven points in the CFA Bill to which it objects. The Administration carefully considered all of these points when they were first put forward last December, but rejected them for the following reasons -
(1) Although "leapfrog" appeals (ie appeals which by pass the Court of Appeal) are possible to the House of Lords, they are not at present possible to the Judicial Committee of the Privy Council. Our intention in preparing the CFA Bill was to retain the current law and practices in respect of the Privy Council as far as possible.
(2) Judges from other common law jurisdictions are eligible for appointment as permanent judges of the CFA, provided that they have previously been appointed to the Supreme Court bench. It would be inconsistent with the 4+1 formula to allow overseas judges to be appointed directly to the CFA as permanent judges.
(3) The appeal committee needs to act quickly and efficiently. It will clearly be easier for permanent judges, with or without the Chief Justice (CJ), to determine applications for leave to appeal. It would be very costly to involve a judge from another common law jurisdiction in considering such applications.
(4) Although the CFA will be separate from the Supreme Court (and other courts), there is and will be only one Judiciary. It is entirely appropriate for the most senior judge to be head of the Judiciary as a whole and to be charged with the administration of the Judiciary as a whole.
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