TNAG-2878-FCO40-4150-Hong-Kong-Court-of-Final-Appeal-1993 — Page 31

Annex D

decision on

26 November 1991

CONFIDENTIAL

Blue Volume XXXXVIII(18)

XCX(91)61

Copy No. 34

MEMORANDUM FOR EXECUTIVE COUNCIL

COURT OF FINAL APPEAL

THE PROBLEM

Agreement has been reached in the JLG on the establishment of the Court of Final Appeal (CFA). The arrangements agreed upon have been widely criticised by the legal profession and in the Legislative Council. We must now consider the way forward.

RECOMMENDATION AND ADVICE SOUGHT

2

It is recommended that the Administration should proceed as proposed in paragraphs 16 and 17 below and work towards establishing the Court of Final Appeal in 1993.

3

Members will be asked to advise whether this recommendation should be approved.

BACKGROUND AND ARGUMENT

Local Reaction to the JLG Agreement on the CFA

4

The criticisms of the JLG agreement on the CFA (as summarised A in memorandum XCX(91)44 at Annex A) have been led by the legal profession. The Hong Kong Bar Association and the Law Society of Hong Kong have publicly criticised the agreement on numerous occasions. As the Position Paper on Court of Final Appeal issued jointly by the two legal bodies (copy at Annex B) on 13 October 1991 indicates, the main complaints of the legal profession are as follows -

B

(a)

the agreement on composition whereby only one judge from other common law jurisdictions ("overseas") may be invited to sit on the CFA contravenes the letter and spirit of the Joint Declaration (JD) in that it does not allow for the flexibility of the invitation of overseas judges "as required" but seriously restricts that flexibility;

Executive Council