LAWYERS in Hong Kong are deeply divided over the Court of Final Appeal (CFA), the final arbiter of law in the Hong Kong Special Administrative Region from 1997.
The establishment of the court has caused a major ruckus between the Chinese and British governments as well as at the Law Society and the Bar. And the final agreement arrived at earlier this month, while widely applauded by the political community, has left many issues unresolved from the legal community's point of view.
The Hong Kong Bar Council has described it as “less than satisfactory” and the Law Society says it is too early to pass judgement but that there are a number of outstanding issues which the new agreement does not deal with.
In the new agreement, the Chinese were successful in stopping the court from being set up before 1997. However, they agreed that the British could participate in preparations to set it up.
One of the main grounds of contention is the number of overseas judges allowed to sit in the court.
The new agreement accepts that one of the court's five judges can be an overseas judge. It is a position that, although now accepted by the Law Society of Hong Kong, has split the profession.
Originally, the Law Society of Hong Kong supported the premise of the Basic Law and the Joint Declaration, the agreement signed between Britain and China which laid no limits on the number of overseas judges in the five-judge court.
However, this was overturned by another agreement signed by the Sino-British Joint Liaison Group in 1991 which limited the five-judge court to one overseas judge, known as the “four-to-one” formula.
Many lawyers believe that this represents a blatant violation of the Joint Declaration and the Basic Law.
The Hong Kong Bar in particular has taken this view which members voted for in an extraordinary general meeting at the end of 1994.
The Law Society, however, initially, supported the view, saying that neither the British nor the Chinese government could by alternative agreement fetter the discretionary power of the CFA to invite overseas judges.
However, as disagreement after disagreement ensued over the court between the Chinese and the British, it became less likely that the court would be set up before 1997.
The fear that a legal vacuum would result was one of the reasons why the Law Society consequently made a U-turn at the end of last year, accepting the “four-to-one” formula and causing furore among a number of its members who viewed the society's action as nothing short of betrayal.
A group of solicitors called on the Law Society to convene an extraordinary general meeting in December.
In the words of Yolanda Fan, a solicitor who opposed the
society's new stance, they were calling “for genuine consultation on this important and controversial piece of proposed legislation”.
The system of proxy voting ensured that the Law Society won the day, although the vote was very close.
The new agreement was signed on 9 June between the Chinese and British negotiators. Britain agreed not to set up the court before 1997 in return for British involvement in the preparations. China has backed down on its demand for further legislative provisions on “post-verdict remedial arrangements” which would cast doubt on the finality of court rulings.
In return, the Hong Kong government has included an amendment to the bill allowing for an existing remedial arrangement.
Commenting on the agreement, Law Society secretary general Patrick Moss said that although Law Society members had met to discuss it, it was too early to comment. He added that a number of the technical points put forward by the society remained unresolved.