XN000022-1995-07-05 — Page 32

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Mr President, I would agree with the observations of the Hon Simon Ip about bringing in the JSC into the debate on this Bill. I would simply add that the transparency of the Judicial Service Commission is of course regulated by the Judicial Service Commission Ordinance passed within the last seven years by this Council and which imposes an obligation on confidentiality.

Mr President, the debate this afternoon has focused crisply, sharply on advocacy experience. Could I Mr President deal with the assertion, suggestion that this Bill would create an anomaly, a serious anomaly. It is argued that a barrister would need to practise as an advocate for at least 10 years before being eligible for appointment. Whereas a solicitor would only need to practise as a solicitor for that period without necessarily having advocacy experience.

Mr President, I do not accept for one minute that such an anomaly would arise. I do not interpret the present provision relating to barristers as requiring 10 years' advocacy experience. Under the current law, a person who is qualified to practise as an advocate, which include a barrister, is eligible for appointment to the Supreme Court bench if he or she has for at least 10 years' practice as an advocate or a solicitor in certain jurisdictions.

In the context of that provision, I take the view that a person who practises as a barrister also practises as an advocate irrespective of whether he or she regularly appears in Court. If this were not the case, a solicitor with 10 years' experience as such but with no advocacy experience could become eligible for Supreme Court appointment by becoming a barrister. But a barrister with 10 years' experience as such but with no advocacy experience would not be eligible.

Mr President, you are going to have got it set it out like that to see that it simply cannot be right. I therefore take the view that the Bill if passed would not mean that solicitors can be eligible without advocacy experience but barristers cannot. However, I'm bound to point out, Mr President, that if the alleged anomaly would be a problem it could have been avoided by clarifying the eligibility criteria for barristers long ago. And the fact is that no one has sought to do that, rather suggesting to me that opponents of the Bill are not concerned with avoiding anomaly.

The Committee Stage Amendment

Perhaps I can say something, Mr President, about the Committee Stage Amendment that the Hon. Martin Lee will be moving later on this afternoon. The Bar Association has always opposed the amendment set out in the Bill and has argued that advocacy or judicial experience should be pre-requisites for appointment to the Supreme Court bench.