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The Council therefore has the power to buttress the future legal system with a Court of Final Appeal that, subject only to the Basic Law, has the same functions and jurisdiction as the Judicial Committee of the Privy Council. And to do so without creating any damaging judicial vacuum.
What are the objections that have been raised to the Bill or to the agreement?
COMPOSITION OF THE COURT
First, some members object to the proposed 4+1 composition of the court. It has been argued that the 4+1 formula breaches the Joint Declaration and the Basic Law. This assertion is not correct, and has been rejected by both British and Chinese Governments. Our view that the 4+1 composition is consistent with the Joint Declaration and the Basic Law is supported by a number of authoritative independent legal opinions.
Some members have criticised the JLG agreement providing for the 4+1 composition on the grounds that the court ought to have granted flexibility to invite more overseas judges if it wishes. We have not the slightest doubt that the 4+1 composition is a perfectly acceptable way of implementing the provisions in the Joint Declaration and the Basic Law that provide for judges from other common law jurisdictions to sit on the Court of Final Appeal. Nor is the rule of law in any way undermined by this composition.
A few members referred to the eight proposals put forward by the PWC Political Affairs sub-group, and criticised the Government in particular for accepting the proposal that the Chief Executive should chair the meeting of the Judicial Officers Recommendation Commission at which the recommendation would be made in respect of the first Chief Justice. As the Governor made clear to this Council when he announced the CFA agreement on 9 June, we obtained a clear statement from the Chinese side that the Chief Executive would only conduct this meeting of the JORC and would take no part in making the recommendation. And this would be a one-off transitional arrangement. Once the CJ had been appointed, he would of course chair the JORC. On this basis, we accepted that the proposed arrangement was a practical one and did not breach the Basic Law.
DELAYED COMMENCEMENT
Another provision in the Bill that has been criticised is that providing for the court to be established on 1 July 1997. The Administration makes no secret of the fact that it would have preferred to establish the court earlier than this. However, Members are fully aware of the reasons why there has been a delay over the establishment of the
court.