XN000022-1989-11-08 — Page 55

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WEDNESDAY, NOVEMBER 8, 1989

TO ASSIST THE

"HE IS THUS WELL PLACED

COMMISSION IN ITS DELIBERATIONS. CONCERNING BOTH LAWYERS WHO SEEK APPOINTMENT то THE BENCH AND MEMBERS OF THE JUDICIARY WHO SEEK, OR WHO ARE PROPOSED ADVANCEMENT," SIR DAVID SAID.

FOR,

THE BILL ALSO INTRODUCED A CONSULTATIVE MECHANISM FOR THE APPOINTMENT OF THE TWO MEMBERS FROM THE LEGAL PROFESSION. ONE WOULD BE A BARRISTER AND THE OTHER A SOLICITOR.

"BEFORE A DECISION IS TAKEN BY THE GOVERNOR ON THESE APPOINTMENTS. THE CHAIRMAN OF THE HONG KONG BAR ASSOCIATION AND THE PRESIDENT OF THE LAW SOCIETY OF HONG KONG WILL BE INVITED TO NOMINATIONS. THE GOVERNOR WILL WISH TO TAKE ACCOUNT OF RECOMMENDATIONS BUT WILL NOT BE BOUND BY THEM," SIR DAVID ADDED.

MAKE

THESE

AS A CONSEQUENCE OF THE INCREASE IN MEMBERSHIP OF THE COMMISSION FROM SIX TO NINE, THE BILL ALSO PROVIDED FOR AN INCREASE IN THE QUORUM TO THE CHIEF JUSTICE PLUS FIVE MEMBERS.

"WE BELIEVE THAT THE LEGAL PROFESSION'S SUGGESTION THAT THE QUORUM SHOULD BE SEVEN MEMBERS IS INAPPROPRIATE. AS MEMBERS WILL APPRECIATE, DURING CERTAIN PERIODS OF THE YEAR WHEN BUSINESS MUST BE TRANSACTED IT IS QUITE POSSIBLE THAT MORE THAN TWO MEMBERS OUT OF HONG KONG," SIR DAVID EXPLAINED.

WILL BE

THE OTHER CHANGE INTRODUCED WAS THE REMOVAL OF THE REQUIREMENT FOR DECISIONS TAKEN BY THE COMMISSION TO BE UNANIMOUS.

OF

BE

"WITH AN EXPANDED MEMBERSHIP OF NINE, THE LIKELIHOOD UNANIMOUS DECISIONS WILL NATURALLY BE REDUCED AND IT WOULD CLEARLY UNDESIRABLE TO THE OPERATION OF THE COMMISSION THAT DECISIONS SHOULD BE BLOCKED BY THE OBJECTION OF ONE MEMBER.

"ON THE OTHER HAND, THE VALIDITY OF A DECISION MIGHT BE IN DOUBT IF THERE WERE TO BE A LARGE NUMBER OF DISSENTING VOTES.

"THE BILL THEREFORE PROVIDES THAT RESOLUTIONS SHOULD BE PASSED WITH NOT MORE THAN TWO DISSENTING VOTES. THE LEGAL PROFESSION'S SUGGESTION FOR RESOLUTIONS TO BE PASSED WITH NOT MORE THAN ONE DISSENTING VOTE IS NOT CONSIDERED ACCEPTABLE, SIR DAVID ADDED.

M

THE LEGAL PROFESSION HAD PROPOSED THAT THE LEGISLATION SHOULD SPECIFY THAT JUDICIAL APPOINTMENTS SHOULD BE MADE BY THE GOVERNOR IN ACCORDANCE WITH THE ADVICE OF THE JUDICIAL SERVICE COMMISSION.

"THIS WOULD BE CONSISTENT WITH THE PROVISION IN THE JOINT DECLARATION THAT JUDGES OF THE SAR COURTS SHALL BE APPOINTED BY THE CHIEF EXECUTIVE IN ACCORDANCE WITH THE RECOMMENDATION OF AN INDEPENDENT COMMISSION.

"HOWEVER, BEFORE THE JUDICIAL SERVICE COMMISSION CAN ASSUME SUCH AN EXECUTIVE ROLE, CERTAIN MEASURES SUCH AS PROVIDING FOR SECURITY OF TENURE FOR JUDICIAL OFFICERS AND REPLACING THE LETTERS PATENT UNDER WHICH JUDGES ARE NOW APPOINTED WITH OTHER PROVISIONS AFFORDING SIMILAR PROTECTION WILL HAVE TO BE PUT IN PLACE.

"THEREFORE WE