TNAG-2221-FCO40-3189-Constitutional-development-in-Hong-Kong-role-of-the-Legislat-1991 — Page 21

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060713 MDHIAN 4988

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FM HONG KONG

TO IMMEDIATE F C O

TELNO 3785

OF 05093OZ DECEMBER 91

INFO PRIORITY PEKING, UKREP JLG HONG KONG, HKGO LONDON

INFO PRIORITY HKGO WASHINGTON, HKGO NEW YORK, HKGO BRUSSELS INFO PRIORITY HKGO SAN FRANCISCO, HKGO GENEVA, HKGO TOKYO

Hvs 370/4

Hxc

MY TELNO 3766 (NOT TO ALL): COURT OF FINAL APPEAL (CFA): LEGCO DEBATE, 4 DECEMBER.

AS EXPECTED LEGCO PASSED BY A WIDE MARGIN (34 VOTES FOR: 11 AGAINST AND 4 ABSTENTIONS) SIMON IP'S AMENDED MOTION. 9 MEMBERS (INCLUDING TWO NEWLY APPOINTED EXECUTIVE COUNCILLORS) WERE ABSENT DURING THE VOTING. 30 NON-OFFICIAL MEMBERS SPOKE IN THE DEBATE.

2.

IN HIS SPEECH, IP ARGUED THAT THE JLG AGREEMENT ON COMPOSITION WAS IN BREACH OF THE JD, WHICH IN HIS VIEW GAVE THE CFA UNRESTRICTED POWER TO INVITE OVERSEAS JUDGES. THE JLG AGREEMENT HAD THEREFORE CURTAILED THE RIGHTS IN THE JD. HE URGED THAT GREATER FLEXIBILITY SHOULD NOT BE SACRIFICED FOR SPEED, AND THAT IT WAS PREFERABLE (NEXT WORD UNDERLINED) NOT TO HAVE A CFA BEFORE 1997 THAN TO HAVE ONE WITH LIMITED FLEXIBILITY. HE ALSO EXPRESSED CONCERN ABOUT THE QUALITY OF THE FUTURE CFA IF OVERSEAS PARTICIPATION WAS NOT STRENGTHENED, CITING STATISTICS ON THE REVERSAL RATE OF HONG KONG CASES BY THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL (JCPC) IN SUPPORT.

3.

IN THEIR SPEECHES, BOTH THE CHIEF SECRETARY AND THE SECRETARY FOR CONSTITUTIONAL AFFAIRS STRESSED THAT THERE WAS NO REALISTIC PROSPECT OF RE-NEGOTIATING THE JLG AGREEMENT. THE REAL CHOICES IMPLIED BY IP'S DECEPTIVELY INNOCUOUS LOOKING MOTION WERE EITHER TO ESTABLISH A WORKABLE (THOUGH NOT IDEAL) CFA: OR HAVE NO CFA AT ALL BEFORE 1997, WITH ALL THAT THAT IMPLIED IN TERMS OF UNCERTAINTY AND DISCONTINUITY FOR THE JUDICIAL SYSTEM BEYOND 1997. THE ATTORNEY GENERAL EXPLAINED WHY BY APPLYING THE RULES OF INTERNATIONAL LAW IN INTERPRETING THE JD, HE WAS SATISFIED THAT THE JLG AGREEMENT HAD BEEN REACHED IN A MANNER CONSISTENT WITH THE ORIGINAL INTERNATIONAL TREATY AND WAS IN ACCORDANCE WITH ITS PROVISIONS. HE ALSO REJECTED DOUBTS EXPRESSED ON THE QUALITY OF THE FUTURE CFA IF THE JUDGES WERE TO BE DRAWN FROM THE EXISTING SUPREME COURT, BY CITING SIMILAR PRACTICE OVERSEAS AND STATISTICS

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