XN000022-1995-05-03 — Page 26

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A third argument against the 4 plus 1 formula is that the JLG has no power to amend the Joint Declaration. This argument depends, of course, on the assumption that the 4 plus 1 formula is not consistent with the Joint Declaration, an assertion that I have already demonstrated to be false.

On analysis, the arguments that the 4 plus 1 formula is inconsistent with the Joint Declaration and the Basic Law prove to be ill-conceived. May I remind members that the JLG agreement was entered into by representatives of the two Governments that signed the Joint Declaration. Let me repeat and emphasise what the Chief Secretary said earlier in this debate, that it would have been unthinkable, inconceivable for any government to have entered into the JLG agreement unless it was satisfied that it was fully consistent with the Joint Declaration.

Arguments in favour

Mr President, I now turn to arguments in favour of the JLG agreement. Recently, the British government has taken the unusual step of issuing a statement, approved by Ministers, setting out the reasons why the 4 plus 1 formula is not inconsistent with the Joint Declaration and the Basic Law. This reads follows.

Both the Joint Declaration and the Basic Law are, in respect of the Court of Final Appeal, framework provisions which are intended to be fleshed out by more detailed legislative provisions. In particular they leave the detailed composition and workings of the CFA to be defined at a later date. They do not specify, for example, the number of judges who are to sit in the CFA. It does not follow that all such It is clearly matters are left to the unfettered discretion of the court itself. contemplated that they will be the subject of further legislative provision. Let me remind members that Article 83 of the Basic Law provides that:

"The structure, powers and functions of the courts of the Hong Kong Special Administrative Region at all levels shall be prescribed by law."

The British Government's statement also rejects the argument that there is any special significance in the use of the word "judges" (in the plural) in the Joint Declaration and the Basic Law. I have already dealt with that point. The statement also refers to the Vienna Convention on the Law of Treaties.

Article 31 of the Vienna Convention codifies customary international law for the interpretation of treaties. This applies to the Joint Declaration, since as members know it is an international agreement, registered (under Article 102 of the UN Charter) with the UN Secretariat. Article 31(3)(a) of the Vienna Convention provides that, in interpreting a treaty, there shall be taken into account, together with the context -