XN000022-1995-05-03 — Page 25

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Legality of JLG agreement

The second objection to the 4 plus 1 composition is based on the assertion that it is inconsistent with the Joint Declaration and the Basic Law. Were this so, it would indeed be wrong to implement the JLG agreement. The Administration and this Legislative Council should on no account support any breach of those vital documents. But what is the basis for the assertion of such a breach?

Let me set out some of the arguments.

Arguments against

First, some rely on the use of the plural "judges" in the Joint Declaration and the Basic Law and say that the 4 plus 1 agreement does not allow "judges", but only one judge, to sit on the court. This is a superficially attractive argument, but it is wrong. The provision in the Joint Declaration and the Basic Law is to be interpreted as meaning that in the cases that it hears the court may invite overseas judges. The 4 plus 1 formula satisfies this meaning. Under that formula, the court can invite overseas judges (in the plural) to sit on the court, albeit not more than one for each case. Even Professor Wade, whose opinion was relied upon by opponents of the 4 plus I formula in December 1991, concedes this point as Mr Simon Ip has pointed. And since he pointed it out some time ago, I'll repeat it for you. In his latest opinion Professor Wade says this -

"While I see the force of the argument based on the use of the word "judges" in the plural in Article 82 of the Basic Law, I do not think it is conclusive, since it would be natural to use the generic plural so as to leave the number of overseas judges open, to be prescribed by a further law under Article 83, and the plural need not necessarily mean a plurality on any one occasion."

A second argument used to impugn the legality of the 4 plus I composition is a reference to the "spirit" of the Joint Declaration and the Basic Law. Mr President, as any lawyer knows, when a person relies on the "spirit" of a document it is a clear indication that he or she is on weak ground and cannot rely on any express provision that assists his or her argument. In the case of the Court of Final Appeal, we are told the "spirit" of the Joint Declaration and the Basic Law is the high degree of autonomy granted to the Hong Kong Special Administrative Region, plus the guarantee of judicial independence and of continued links with the rest of the common law world. It is then argued, by some, that the 4 plus 1 formula is in breach of this spirit. But there is absolutely nothing in the 4 plus 1 formula that prejudices Hong Kong's high degree of autonomy, judicial independence or continued links with other common law jurisdictions. The argument based upon the spirit of the Joint Declaration and the Basic Law therefore has no substance.