TNAG-2878-FCO40-4150-Hong-Kong-Court-of-Final-Appeal-1993 — Page 48

Summary of Press Reports on the Setting Up of the Court of Final Appeal

(July 1 to 15, 1993)

There were only a few isolated reports and a two-part commentary in the press on the Court of Final Appeal (CFA) during the period under review.

News Reports

The Governor talked about the CFA among other things in an interview with Wah Kiu Yat Po (1.7). He said the Government must draw up legislation on the CFA based on the 1991 JLG agreement for two simple reasons. First, the Chinese side had ruled out the possibility of renegotiation on the court's composition. Secondly, it was HK people's hope that the court would be set up as early as possible to accumulate experience.

The HK Daily News (7.7) reported that the SAR Preparatory Committee (SARPC) preparatory working committee would discuss the setting up of the CFA after 1997 at its first meeting in the following week. The paper quoted a Chinese source from the JLG as saying that despite the discussion, the Chinese side still hoped that the Government would table the relevant legislation on the CFA, which should be drafted in accordance with the 1991 JLG agreement, in Legco as soon as possible for the court to be set up before 1997. It said the urgent task was to make HK people understand that it was more important to have the CFA set up early than to be flexible on the number of overseas judges.

The source said the CFA must conform with the JLG agreement if it was to be set up before 1997. It said Bar Association chairman Jacqueline Leong did not understand the BL and the JD in saying that the Government could disregard the JLG agreement and set up the CFA in accordance with the JD before 1997. The source said the JD and the BL never indicated that HK could set up the CFA on its own before 1997, nor did it say such a court could last beyond 1997.

The Standard (9.7) reported that the legal sub-group of the secretariat of the SARPC preparatory working committee would meet in Shenzhen at the weekend to start tackling legal issues, including the CFA. Mainland law expert and former BL drafter Wu Jianfan said the CFA issue depended entirely on Britain. If Britain agreed to act in accordance with the JLG agreement, then the working group would not have many things to do. Otherwise, the JLC or the working group needed to work out such details as the criteria for overseas and local judges.

Commentary

In a two-part commentary in the HK Economic Times (12.7 and 13.7)., HKU senior law lecturer Johannes Chan defined "local judge" as any full- time judge employed in local courts, including the CFA, who could be a Chinese or a foreigner while "overseas judge" is one from other Common Law jurisdictions specially called in to preside over a particular case. He suggested that the CFA should have at least 10 judges, seven of whom were permanent.or local judges and three to five overseas judges. Mr Chan said to hire a permanent CFA judge who was not a serving judge in local courts, the eligible candidate could first be placed at the Court of Appeal for a short period of, say three months, to qualify him as a "local judge" before