XN000022-1995-07-26 — Page 19

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4+1 composition

I turn now to the issue of composition. Before I deal with the amendments that would be coming up later, I would like to respond to some of the insulting and defamatory remarks made about the Judiciary. And I echo here the sentiments as expressed by the Hon Ronald Arculli. I strongly deprecate the running down of Members about the Judiciary, and strongly deprecate the use of expressions such as worthless Court of Appeal, Court of Final Appeal, to say that we will have a migration of judges from the Court of Appeal to the Court of Final Appeal so that in effect the Court of Final Appeal will only be the Court of Appeal in another guise. That is an extremely poor point to make. Most judges who sit in Final Courts of Appeal in other jurisdictions reach there by a series of judicial promotions. Most of the judges in the Privy Council have got there on promotion from the Court of Appeal. So the point is an extremely bad one to make. Moreover, what interests are served, I ask, for Members of this Council to insult our judges of Court of Appeal. The third area where amendments that are inconsistent with the JLG agreement are to be moved is in respect of the 4+1 composition of the court. This, of course, has been the subject of controversy since September 1991, when the first JLG agreement in respect of the court was made. And we had rehearsed today the arguments, I dear say, some of the old threadbare arguments, that we have known, but I can't say have loved, over the years. Some members of this Council may feel obliged to oppose the 4+1 composition in order to maintain the position they adopted on this in the past. They do not wish to be accused of "doing a U-turn."

However, I would like to remind members of what the representatives of the Law Society said to the Bills Committee. When asked why they now supported the 4+1 composition when they had, in 1991, opposed it, the representatives said "We have had the courage to change our minds." As the President of the Law Society wrote in a letter sent to all members of this Council earlier this week, "after careful consideration, the Law Society has concluded that the formula comes within the broad principle implicit in Article 82 of the Basic Law and is not contrary to the literal construction and liberality of the Article. The Law Society considers therefore the Bill should not be rejected because of the 4+1 formula."

It does take courage to change one's mind, and there are in this case very good reasons for doing so. Since the debate in this Council in December 1991 many things have changed. It is now clear that there is no chance that the Chinese side will renegotiate the 4+1 composition. Independent legal opinions have supported the Administration's view that this composition is not inconsistent with the Joint Declaration or the Basic Law. And we are now in a position to enact legislation, which has the support of the Chinese side, that provides for a proper Court of Final Appeal being established without there being any judicial vacuum.