TNAG-2878-FCO40-4150-Hong-Kong-Court-of-Final-Appeal-1993 — Page 32

CONFIDENTIAL

XCX(91)61

(b)

(c)

such a restrictive agreement severely damages the real and perceived independence of the CFA and therefore the Judiciary as a whole;

a CFA composed mainly of existing local judges would be no more than the existing Court of Appeal under another name. It would not be a suitable replacement for the Judicial Committee of the Privy Council; and

(d) the lack of a written agreement on the CFA raises concern about the meaning of the term "Hong Kong" judges in relation to the permanent judges of the CFA. Such uncertainty is a recipe for confusion and misinterpretation in the future.

In addition, the two legal bodies have asked for the JLG agreement on the composition of the CFA to be re-negotiated, with a view to pressing the Chinese side to allow the Court greater flexibility in determining its composition on a case-by-case or session-by-session basis.

5

Representatives of the business community both inside and outside the Legislative Council whom the legal profession has lobbied, eg. the Legal Committee of the General Chamber of Commerce, have so far been susceptible to the argument that the agreement on composition lacks flexibility and undermines the independence of the CFA. Although they have not openly criticised the agreement, it is understood that there are concerns in business circles about the quality and independence of the CFA if participation by overseas judges is confined to one only.

6

There has been intense media interest in this subject, which is seen to have raised the wider question of consultation over subjects discussed at the JLG and the possibility of amendment in the light of Hong Kong views. Many commentators have seen this subject as another test-case of the willingness of the Chinese authorities to let "Hong Kong people administer Hong Kong", by setting up a CFA on the lines preferred by Hong Kong people. Nevertheless, despite the heavy press coverage, there is little evidence to suggest that the average man in the street has followed the controversy closely.

The Position of the Legislative Council

7

At its In-house meeting on 25 October 1991, LegCo Members adopted by an overwhelming majority (38 for, 2 against and 5 abstentions) the following resolution on the CFA, and asked the Senior Member to take it up with the Administration -

Executive Council

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تعادة