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Hong Kong: Democracy After 1997
[29 JANUARY 1992]
the region, which may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal".
Those are important words, and I shall come back to them in a minute.
The only reference in the Joint Declaration and the Basic Law to the number of judges connected with the Court of Final Appeal is with the tribunals set up to make recommendations regarding the removal of judges from that Court of Final Appeal, and indeed of the chief justice of the Court of Final Appeal. In both the Joint Declaration and the Basic Law such a tribunal is to consist of no fewer than three (or, in the case of considering the chief justice, five) local judges. Those numbers do not refer to the Court of Final Appeal itself.
My reading of the two relevant documents—that is, the Joint Declaration and the Basic Law, and it was on those two documents that the joint liaison group were working is that, with the exception of the chief justice of the Court of Final Appeal and indeed the chief justice of the High Court of the Hong Kong SAR (both of whom, as the noble Lord, Lord Wyatt, has already advised us are required to “be Chinese citizens who are permanent residents of the region with no right of abode in any foreign country"), there neither is nor was any definitive statute with regard to the number of judges constituting the Court of Final Appeal nor to the nationality or domicile of those judges other than the chief justice himself.
We then turn to the agreement reached by the joint liaison group in September of last year; namely, that the Court of Final Appeal shall consist of five judges in any sitting made up of the chief justice of the Court of Final Appeal, three permanent Hong Kong judges -and an important wording in parenthesis here- who may be local or expatriate, and, depending on the needs of each particular case, one remaining judge to be drawn from a list of non-permanent Hong Kong judges or from a list of distinguished judges from other common law jurisdictions. Here we are getting the same phrase coming through again; other common law jurisdictions.
On 4th December last year the Legislative Council rejected by 34 to 11 the joint liaison group's agreement. I have read with the greatest of interest the speech of the Hon. Simon Ip Sik-on (the representa- tive on LEGCO of Hong Kong's legal profession). As I well know, it is at the very least foolhardy for a layman such as myself to disagree with a lawyer, particularly one as eminent as Mr. Simon Ip. However, while I agree with much of his speech, I disagree on two specific and, I suggest, fundamental points.
First, he said:
"the agreement reached by the JLG has altered the clear wording of those documents".
Namely, the Joint Declaration and the Basic Law. As I read it, that agreement by the JLG in no way contravenes either the Joint Declaration or the Basic Law even if, as some of your Lordships and much of the press think, it may not entirely live up to the hopes and aspirations of some.
Secondly, Mr. Ip said that he considered that:
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"the composition of the Court of Final Appeal and the court's unrestricted power to invite overseas judges to sit on it [was] more important than setting up the court early". He went on to say that it was:
“difficult to imagine a court structure that is consistent with the Basic Law that is less flexible than that we are faced with today".
My Lords, I wonder. The noble Lord, Lord MacLehose, if he did not refer to it, certainly inferred from this point that it was impossible to know what sort of Court of Final Appeal might be imposed in July 1997. What Hong Kong needs is stability, and it is running out of time. The smooth transition of the legal system is of paramount importance for the future of Hong Kong, and the vesting of the power of final adjudication in Hong Kong is the most significant aspect of this.
Hong Kong needs to have a Court of Final Appeal in place by 1993 so that it can have four years to establish its credentials and iron out any wrinkles before the territory reverts to China in July 1997. If this can
be achieved, the aim of maintaining continuity within the legal system will be greatly assisted, and in addition its early establishment will bring further confidence and stability not only to the judicial system but also, and more widely, to Hong Kong as a whole.
On 6th December 1991, two days after the LEGCO debate, in the context of that three to one rejection of the agreement reached by the joint liaison group, the South China Morning Post commented as follows in its leading article. I unashamedly quote this paragraph in full because it is of considerable importance. It reads:
"There is, however, a way out of the impasse which Hong Kong can chart itself, without any constitutional change. Instead of trying more backdoor political manoeuvres, the Hong Kong Government can strengthen the territory's judiciary. Accepting that localisation of the judiciary has been a failure to date".
that is a moot point-
"especially at High Court level. Hong Kong should invite the most eminent judges available from other Common Law jurisdictions"-
here is the same phrase coming through again—
"to serve on the bench for the next six years, preferably longer. Not only would Hong Kong's judicial system benefit from their presence, but they could strengthen the pool of talent from which Hong Kong could choose candidates to sit on a Court of Final Appeal. Overseas expertise would therefore be injected into the system. without an argument over how many judges from other countries should be invited to sit in the appeal court. Since it would be a domestic decision, it would be entirely within Hong Kong's right to make it, and does not require approval by either China or Britain”.
In my experience-and here again I wholly endorse the remarks of the noble Lord, Lord MacLehose- Hong Kong is nothing if not an immensely practical place. The action proposed in the South China Morning Post leading article seems to me to be an eminently sensible way of addressing what is clearly a difficult and extremely important problem. Surely it is in the interests of all concerned-Hong Kong, China and the United Kingdom-to accept the agreement as worked out in the joint liaison group and now take action to strengthen Hong Kong's judiciary along the lines advocated in that leading article.
707 LD25/49 Job 7-10
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