- 8.
I would like to take this opportunity to refute the suggestions made by some people, including the Chairman of the Bar Association, that the agreement that we reached with the Chinese side undermines the rule of law and the independence of the Judiciary. They claim that the so-called 4+1 composition of the CFA breaches the Joint Declaration and the Basic Law, that the jurisdiction of the CFA will be restricted because we have agreed to incorporate in the CFA Bill the formulation of "acts of state" in Article 19 of the Basic Law, and that it will be disastrous to delay the setting up of the CFA until 1 July 1997. Well, quite frankly, these claims are totally misguided and misleading.
Let me explain. The British and Hong Kong Governments have not the slightest doubt that the 4+1 composition is fully consistent with the provisions in the Joint Declaration and the Basic Law that provide for judges from other common law jurisdictions to sit on the CFA. And our view is supported by a number of Indeed the CFA Bill reflects this authoritative independent legal opinions. consistency, by incorporating both the wording of the Joint Declaration and the Basic Law and the 4+1 composition.
The claim that including the formulation of "acts of state" in Article 19 of the Basic Law in the CFA Bill has restricted the jurisdiction of the CFA also has no valid legal basis. As a matter of law, Article 19 of the Basic Law, which provides that the Courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs, will be the law of Hong Kong as from 1 July 1997. The CFA Ordinance, which will come into operation on the same day, cannot overrule the Basic Law. So, as a matter of law, the jurisdiction of Hong Kong Courts will be subject to Article 19, whether or not it is included in the CFA Ordinance.
I now turn to the timing for setting up the CFA. It is no secret that we were planning to establish the CFA by July 1996 to give it about a year to build up experience before the transfer of sovereignty. But we would have had to pay a very big price to achieve that. Introducing the CFA Bill into the Legislative Council without Chinese agreement, and with no guarantee that any Court set up as a result would survive 1997, would have meant a loss of public and international confidence because there would have been continuing uncertainty about the form of the CFA after 30 June 1997.
According to the agreement reached on June 9, the preparatory work for the establishment of the Court will be done before the transfer of sovereignty. This is so that on 1 July 1997, the judges can be appointed, the rules of court made, and the Court can commence work immediately. We have received the British Government's assurance that the Privy Council will continue to retain its jurisdiction over cases from Hong Kong up to 30 June 1997, and will give priority to Hong Kong appeals in the months immediately prior to July 1997. Nobody will be deprived of his or her right of final appeal because of any gap between the ending of appeals to the Privy Council and the establishment of the Court of Final Appeal.
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