"local" judges as well as judges from overseas jurisdictions. Confirmation that agreement
has been reached in principle has been received from the Director of Adminstration.
The Director of Administration did not use the term "local" but indicated that further
discussions will continue over the setting up of the Court.
This agreement denies the spirit and letter of the Joint Declaration in that it does
not allow for the flexibility of the invitation of judges "as required" but severely restricts
that power of invitation. It also damages the real and perceived independence of the
Court of Final Appeal and therefore the Judiciary as a whole. The agreement will
clearly restrict the discretion contained in the Basic Law to invite judges as required
which was a flexible discretion. This is, therefore, wrong in principle and contrary to proper statutory construction and implementation of the provisions of the Basic Law.
The agreement will result in little more than establishing the existing Court of Appeal under another name. While not denigrating the competence and ability of Hong Kong's existing judges, a Court of Final Appeal composed mainly of those judges was not what the legal profession expected, nor would it be a suitable replacement for the Privy
Council.
The use of the term "Hong Kong" judges (a term which is not used in either the Joint Declaration or the Basic Law) in relation to the three remaining judges other than the Chief Justice is in contrast to the expression "local" judges in relation to the list from which the fifth judge may be selected. The absence of any apparent written agreement which would contain a definition of that term gives rise for further concern. The loose
No comments yet.
Private notes are available after approval.