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The JLG agreement of last month provides for the establishment of the court on 1 July 1997, in such a way as to avoid a judicial vacuum. In other words, if the Bill is enacted, no harm will be done to the future rule of law.
ACTS OF STATE
I turn now to the provisions in the JLG agreement and Court of Final Appeal Bill in respect of acts of state. A lot of very damaging, and misleading, rhetoric has arisen out of these provisions. Mr President, there are so many red herrings the place is beginning to look like a fish market. Let me set the record straight.
First, neither the JLG agreement nor the Court of Final Appeal Bill in any way alters the jurisdiction of the court as provided for in the Basic Law. I have not heard a single lawyer deny this proposition. Therefore to say that the JLG agreement or the Bill has created any sort of problem is completely without foundation. To say that they have created a "hole in the common law" is, in my view, totally irresponsible.
Secondly, Article 19 of the Basic Law, which relates to acts of state, can be construed consistently with the common law. A great deal has been made -- more heat generated than light shed, I would suggest -- of the fact that Article 19 refers to acts of state "such as defence and foreign affairs". Yet, it cannot be doubted that, under the common law, there are acts of the government outside the areas of defence and foreign affairs that cannot be challenged in court. No lawyer has ever denied this proposition. On the contrary, the Hon Martin Lee himself expressly agreed in 1988 that there were under the common law acts outside the areas of defence and foreign affairs which are non-justiciable. The Government in no way agrees that Article 19 has created any hole in the common law. If anyone else says that it has done so, then it is he, not the Government, that is running up the white flag over this issue.
I repeat, however, that it is the Basic Law, not the JLG agreement, not the Court of Final Appeal Bill that will determine jurisdiction of the courts over acts of state. Nothing that the Hong Kong or British Government has done is in issue here, or has undermined the rule of law in any way.
Before I leave the Court of Final Appeal Bill, I would like to deal with a small further point: one Member point out that the Bar Association was opposed to the CFA Bill. But that member totally failed to mention that the Law Society fully supports the Bill. I cite this as yet another example of the one-sided and tendentious arguments put forward by some Honourable Members during this debate.