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On the "four plus one" composition of the court, Mr Mathews pointed out that the assertion that it breached the Joint Declaration and the Basic Law was incorrect. The view that it was consistent with the Joint Declaration and the Basic Law was supported by a number of authoritative independent legal opinions, he said.
As to the establishment date of the court on July 1, 1997, Mr Mathews noted that the Administration had made no secret that it would have preferred to have it earlier, but Members were fully aware of the reasons why there had been a delay. If the Bill was enacted, a judicial vacuum would be avoided and no harm would be done to the future rule of law.
On the future appointment of CFA judges, Mr Mathews said the Governor made clear to the LegCo when he announced the CFA agreement on June 9 that the Government had obtained a clear statement from the Chinese side that the Chief Executive would only conduct the meeting of the Judicial Officers Recommendation Commission, and would take no part in making the recommendation.
He added: "And this would be a one-off transitional arrangement. Once the Chief Justice had been appointed, he would of course chair the JORC. On this basis, we accepted that the proposed arrangement was a practical one and did not breach the Basic Law."
In respect of "acts of state", Mr Mathews said neither the JLG agreement nor the Court of Final Appeal Bill in any way altered the jurisdiction of the court as provided for in the Basic Law. Furthermore, Article 19 of the Basic Law, which referred to acts of state "such as defence and foreign affairs", could be construed consistently with the common law.
No lawyer had ever denied the proposition that under the common law, there were acts of the government outside the areas of defence and foreign affairs that could not be challenged in court.
"On the contrary, the Hon Martin Lee himself expressly agreed in 1988 that there were under the common law acts outside the areas of defence and foreign affairs which are non-justiciable," Mr Mathews said.
"The Government in no way agrees that Article 19 has created any hole in the common law. If anyone else says that it has done so, then it is he, not the Government, that is running up the white flag over this issue," he said.
Mr Mathews noted that people in Hong Kong were justly proud to live in a free, prosperous, open and pluralistic society.
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