XN000022-1995-06-28 — Page 7

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(5) This is presumably another reference to the 4+1 formula, on which the Administration views have been clearly stated above.

(6) The Administration has no doubt that appeals to the CFA will be possible in respect of cases involving judicial review or habeas corpus.

(7) Clause 32(2) of the Bill has been redrafted in the light of the Bar Association's comments on the earlier draft Bill, and the Administration is confident that it now fully reflects the current practice of the Privy Council in granting leave to appeal in criminal cases.

It is clear that these seven features of the current Bill are not "flaws". The Bar Association also refers to "other new flaws" in the Bill, but gives no indication of what these might be. It is therefore difficult to comment on them.

The Bar Association does, however, make the extraordinary claim that the powers of the Courts to decide whether an act is an act of state "appears to have changed with Clause 4(2)" of the Bill, which repeats the formulation of acts of state in Article 19 of the Basic Law. This statement has no valid legal basis. As a matter of law, Article 19 of the Basic Law, which provides that the Courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs, will be the law of Hong Kong as from July 1, 1997. The CFA Ordinance, which will come into operation on the same day, cannot override the Basic Law. So, as a matter of law, the jurisdiction of Hong Kong Courts will be subject to Article 19, whether or not it is included in the CFA Ordinance.

We agree with the Bar Association that the appointment of the CJ and judges of the CFA must be by an independent process in accordance with the Basic Law. But the Bar Association's statement "that the selection of the Chief Justice and judges of the Court before July 1, 1997 cannot be achieved under the agreement and the Bill as presently drafted without undermining the rule of law, the independence of the Judiciary and the independence of the Judicial Service Commission (JSC)" is totally misguided and misleading.

Clauses 6, 7, 8 and 9 of the CFA Bill provide that the CJ, the permanent judges, the non-permanent Hong Kong judges and the judges from other common law jurisdictions shall be appointed by the Governor (the future Chief Executive) acting in accordance with the recommendation of the Judicial Officers Recommendation Commission ("JORC"). As is clear from item 10 of the Schedule to the Bill, the JORC is the JSC under a different name. It is, in other words, the "independent commission" provided for under both the JD and the BL. The independence of the judicial appointment process is therefore maintained. Indeed, it is enhanced by virtue of the fact the Chief Executive must act in accordance with the recommendation of the JORC, where as the Governor has no such legal obligation at present.