PLC Paper No. LS 19

Paper for the House Committee Meeting
of the Provisional Legislative Council
on 22 August 1997

Legal Service Division Report on
Hong Kong Court of Final Appeal (Amendment) (No. 2) Bill 1997

Object of the Bill

To enable the Chief Executive to appoint a permanent judge of the Court of the Final Appeal who is not eligible to be appointed the Chief Justice of the Court to act temporarily as the Chief Justice in the absence of the latter.

PLC Brief Reference

2. CSO/ADM CR4/3222/85(97) Pt. 49 issued by the Administration Wing, Chief Secretary for Administration Office in August 1997.

Date of First Reading

3. 20 August 1997.

Comments

4. The existing section 5(6) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) now requires that during the temporary absence of the Chief Justice of the Court of Final Appeal (because of illness or for some other reason), the Chief Executive shall appoint the next most senior permanent judge who is eligible to be appointed as the Chief Justice to act in the office during such absence.

5. Under Article 90 of the Basic Law, the Chief Justice of the Court of Appeal must be a Chinese citizen who is a permanent resident of the Hong Kong Special Administrative Region with no right of abode in any foreign country.

6. According to the PLC brief (paragraph 4), none of the present permanent judges of the Court of Final Appeal satisfies that requirement. This means that if the Chief Justice has to absent himself temporarily for any reason, no one can be appointed to act in his place.

7. The amendment introduced by the Bill is to resolve that problem by relaxing the existing restriction. The proposal is to require that the Chief Executive shall in that event appoint the next most senior permanent judge, even though he is not eligible to be appointed as the Chief Justice on a permanent basis, to act in the office for the time being.

Public Consultation

8. There is no indication that public consultation has been carried out.

Conclusion

9. The Bill concerns only the acting appointment of the Chief Justice of the Court of Final Appeal. As such, it should not affect compliance of the relevant provisions with the Basic Law.

10. The Bill is in order in the legal and drafting aspects. It is recommended that the Bill be supported.

Prepared by

CHEUNG Ping-kam, Arthur
Assistant Legal Adviser
Provisional Legislative Council Secretariat
19 August 1997