XN000022-1995-05-03 — Page 28

10 -

I do not need to remind members that for nearly four years there has been a heated debate within the legal profession of Hong Kong as to whether or not the 4 plus 1 composition of the court is consistent with Article 82 of the Basic Law. We in the Administration and the British Government are confident that it is. Mr Ip in effect suggests that the Administration should have the courage of its convictions and allow its view to be tested in the courts. But the real question is not one of blind courage, but rather of wisdom and the public interest. Is it wise to establish a Court of Final Appeal in such a way that the constitutionality of its composition is immediately open to challenge in the courts?

Let me set out for members what that means. If it were so established, any party to an appeal to the Court of Final Appeal, and any other person with a sufficient interest to do so, could challenge the composition of the court. An application could be made to the High Court for a declaration as to the validity of the legislation and for an injunction to prevent the Court of Final Appeal from exercising its jurisdiction. Whatever the decision of the High Court, the losing party would have a right of appeal to the Court of Appeal, and then there could be an appeal to the Court of Final Appeal. The Court of Final Appeal would be asked to decide on the lawfulness of its own composition! If it were to decide it was not lawfully constituted, then it follows logically that its own decision would be invalid! If it were to decide that it was lawfully constituted, the proceedings before the court could be heard, only after months of devastatingly embarrassing uncertainty about the court's legality. I have to ask is this the sort of legal quagmire that this Council is prepared to devise? Is that in the public interest?

It has been suggested that courts are frequently asked to decide on their own jurisdiction. But those jurisdictional questions are completely different from the one now being considered. Courts are sometimes asked to decide whether they have jurisdiction over a particular case. They may occasionally be asked to decide whether a particular tribunal was properly constituted. For example, a few years ago the courts had to decide whether a magistrate had been lawfully appointed. But in such a situation, a higher court was deciding on the lawfulness of a lower court. In the case of the Court of Final Appeal, there will be no higher court which could decide the issue. I knew of no precedent, in any jurisdiction, for deliberately establishing a court of final appeal in a way that is designed to make its composition open to legal challenge.

Mr President, the Court of Final Appeal will be at the apex of our legal system. The eyes of the world will be upon it, including those who need to decide whether to invest in Hong Kong, to do business here, or have their disputes litigated here. We need the court to build up its international reputation as soon as possible. We need the rule of law to be buttressed by a court that is strong and free from any legal uncertainties. But that would not happen if Mr Ip's proposal were adopted.