PLC Paper No. CB(2)68
(These minutes have been seen by the
Administration and cleared with the Chairman)
Ref: CB2/BC/11/96

Judicial Service Commission (Special Provisions) Bill 1997

Minutes of meeting
held on Friday, 13 June 1997
at 8:30 am in Conference Room B
of the Legislative Council Building

Members present :

    Hon Martin LEE, QC, JP (Chairman)
    Hon Ronald ARCULLI, OBE, JP
    Hon CHENG Kar-foo

Public officers attending :

Mr Paul TANG
Deputy Director of Administration
Ms Cecilia YEN
Assistant Director of Administration
Deputy Law Officer, Attorney General’s Office
Senior Assistant Law Draftsman

Clerk in attendance :

Mrs Mary TANG
Chief Assistant Secretary (2) 4 Atg

Staff in attendance :

Mr Jimmy MA
Legal Adviser
Mr Stanley MA
Senior Assistant Secretary (2)9

Election of Chairman

Mr Martin LEE was elected Chairman for the Bills Committee.

Meeting with the Administration

2. Before inviting the Administration to brief members on the Bill, the Chairman gave an outline of his interpretation of the Bill. To his understanding, it was the intention of the Chief Executive (CE) (designate) and the Special Administrative Region (SAR) Government to hold a meeting of the Judicial Officers Recommendation Committee (JORC) on 1 July 1997 to appoint the Chief Justice and other judges.

3. Under the provisions of Judicial Services Commission Ordinance (Cap. 92) (which would become the JORC Ordinance on 1 July 1997), the Chairman and no fewer than six members might exercise and perform any of the functions of JORC. However, at the first meeting of the JORC on 1 July 1997, no judges would have been appointed in the Hong Kong SAR and hence the quorum of six members could not have been attained in the absence of the two judge members. The purpose of the Bill would be to provide for transitional arrangements to enable a person who served as a judge immediately before 1 July 1997 to be appointed to JORC as a member who was a judge for the purpose of any meeting of JORC to be held on 1 July 1997.

4. The Chairman pointed out that Article 93 of Basic Law (BL) already stipulated that all existing judges might remain as judges. Hence there would not be a need for judges to be re-appointed as such. The provisions of the Bill which enabled the two judges to be re-appointed as judges before being appointed to JORC on 1 July 1997 might cast doubt on the original intention of Article 93 which was to provide for a "through train" for all judges and other judicial officers.

5. The Chairman further drew members’ attention to Article 88 of BL which stated that judges of the Courts of SAR should be appointed by CE on the recommendation of JORC. Therefore, CE would not be able to appoint judges if JORC had yet to be constituted. The proposed appointment under the Bill would therefore conflict with Article 88 of BL. The provisions of the Bill were seen to have created problems which could not be solved constitutionally. He further warned that every step taken at the first meeting of JORC on 1 July 1997 would need to be perfectly in order and exactly right; otherwise the appointments would be subject to legal challenge.

6. As a former member of the Hong Kong Basic Law Drafting Committee, the Chairman stated that members of the Drafting Committee were very concerned that there must be a through train arrangement for judges and other judicial officers. The logic and rationale behind Article 93 of BL was that those who were serving as judges and other judicial officers under British rule on 30 June 1997 ought automatically continue holding exactly the same posts on 1 July 1997 and thereafter. Article 93 on the through train arrangement was applicable to existing judges while Article 88 related only to the appointment of new judges; and there was thus no conflict between the two.

7. In response, representatives of the Administration made the following points -

  1. the Bill was intended to introduce a technical amendment to avert a practical problem that would arise at the first meeting of JORC. It would prevent any future legal challenge to be made on the validity of appointment of a judge, on the basis that the Commission which recommended the appointment was not properly constituted;

  2. those who would be appointed as judges later in the day on 1 July 1997 could be deemed as judges for the purposes of the first meeting;

  3. the proposed legislative provision could be amended by adding "for the avoidance of doubt" in order to avoid conceding the argument about Article 93 of BL on the continuity to remain as judges; and

  4. the members of JORC (designate) had agreed to the proposed arrangement.

8. Referring to Article 48(4) of BL, Mr Ronald ARCULLI suggested that the problem be resolved through the issuance of executive orders. However, as Article 48(6) had specifically provided that the appointment and removal of judges of the courts at all levels be in accordance with legal procedures, the appointment would therefore need to be made in accordance with Article 88 which required the recommendation of JORC.

9. The Chairman was concerned that the provisions of the Bill in relation to the appointment of judges would contravene BL. He was of the view that the "deeming" provisions proposed could not have resolved the matter constitutionally.

10. Mr ARCULLI opined that the advantage of the Bill with its "deeming" provisions would be that it would provide additional safeguards to Article 93 on the continuity of employment, and would give the least possible chance of success against any future legal challenge. He failed to see any damage done by the introduction of transitional provisions which would safeguard against possible misinterpretation of Article 93 of BL. In any case, the two judges appointed would only act for one day.

11. Despite the above arguments, the Chairman remained of the view that the provisions of the Bill were contrary to BL and that it was creating problems rather than removing uncertainties. The introduction of the Bill was considered unnecessary and undesirable.

12. The Chairman further referred to a LegCo question raised by Mr Albert HO Chun-yan at the LegCo sitting on 15 May 1996 on the transition of judicial officers. He pointed out that the Secretary for Constitutional Affairs had clearly stated in his reply that any possible arrangements that the SAR Government might wish to make to effect the continued service of judges would be no more than procedural formality, for example, taking the oath of allegiance under Article 104 of BL.

13. Representatives of the Administration, on the other hand, held the view that unless the judges were formerly appointed under the SAR Government, it would be arguable whether they could be considered as holding judicial offices. As existing appointments under the Letters Patent would terminate on 30 June 1997, the formal appointment of judges might remove any uncertainties associated with the change of sovereignty.

14. As the contention centred on the power of appointment of judges by the CE, the Legal Adviser suggested that consideration be given to amending the Bill to the effect that reference made to "appointment" be removed from the provisions of the Bill. This would be considered acceptable as long as the National People’s Congress did not exercise its power under Article 160 of BL to declare the Bill to be in contravention of the BL.

15. Members agreed with the Legal Adviser’s proposal and asked the Administration to revise the wording of clause 2 of the Bill.

16. The following revised version of clause 2 of the Bill was endorsed by the Bills Committee -

    "2. Declaration for the avoidance of doubt

    For the avoidance of doubt it is declared that a person who serves as a judge on 30 June 1997 remains a judge on the day following that day for the purposes of section 3(1)(c)(i) of the Judicial Service Commission Ordinance (Cap. 92) (to be known as the Judicial Officers Recommendation Commission Ordinance on the day following 30 June 1997)."

17. Members agreed that the revised version of the Bill should be tabled at the meeting of the House Committee on the same afternoon. A verbal report of the Bills Committee would be made to the House Committee recommending support of the resumption of Second Reading debate on the Bill at the LegCo sitting on 17 June 1997.

18. Before closing the meeting, the Chairman stressed the need for the Administration to make clear its position on the interpretation of Article 93 of BL. Furthermore, the terms of appointment of judges should be clearly spelt out in the letters of appointment.

19. The meeting closed at 9:45 am.

Provisional Legislative Council Secretariat
22 July 1997

Last Updated on 11 Aug,1997