Some senior members of the government’s top advisory body voiced opposition in 1991 to an agreement between China and Britain whereby only one of the five judges hearing cases at the new Court of Final Appeal (CFA) would be from overseas. The identities of the Executive Council members, however, were redacted in British documents declassified on Tuesday.
At the time, the agreement sparked strong opposition from the Hong Kong Bar Association and the Hong Kong Law Society, as well as from pro-democracy lawmakers. The inclusion of overseas judges was intended to maintain confidence in the Hong Kong legal system, and the legal sector argued it should be up to the CFA to decide the number of overseas judges hearing cases.
According to documents from the UK National Archives seen by HKFP, there was opposition to the agreement within the Executive Council with some members asking for more overseas judges to be included.
The number of overseas judges allowed on one case was not stated in the Sino-British Joint Declaration – signed in 1984 sealing Hong Kong’s 1997 Handover, nor in the Basic Law – the city’s de facto constitution. The Joint Declaration and Article 82 of the Basic Law state simply that the CFA “may as required invite judges from other common-law jurisdictions to sit on the court.”
Challenge to Beijing
Percy Cradock, the British prime minister’s foreign policy adviser at the time, wrote in a November 1991 document to John Major that some interpreted the Joint Declaration to mean that two or more overseas judges would be allowed at the CFA.
Cradock said that the agreement was not only opposed by lawyers, but also by some in the business community, as well as senior Executive Council members whom he named.
“[T]here is no earthly hope of getting the Chinese to renegotiate; and the effect of demanding another overseas judge will only be to prevent the Court getting set up and acquiring status and experience before 1997,” he wrote.
In November 1991, some of the non-official ExCo members included politicians Lydia Dunn, Allen Lee, and HSBC chair William Purves. They were appointed to the body between 1982 and 1986.
Cradock also noted that there was a suggestion that Hong Kong should unilaterally legislate for two overseas judges out of five, since the number would be reduced by China after the 1997 Handover anyway.
“In other words, a deliberate challenge to Peking,” Cradock wrote.
The suggestion was likely from an executive councillor, but the identity of the person who made the suggestion was also redacted.
A British ‘plot’
Cradock said that China viewed the episode as a “British plot.” He said the outcome was disappointing and leaders of the ExCo at the time were irresponsible for opposing the agreement, since the ExCo had accepted the official interpretation at earlier stages of the negotiation.
He said the incident was also a result of a “more assertive and politically inexperienced LegCo” – referring to lawmakers who entered the legislature via the first direct election in September 1991. They rejected the agreement reached by China and the UK. Craddock said London should expect similar incidents to happen again.
A motion against the agreement was passed by the legislature the month after Cradock wrote the document.
Martin Lee – a barrister and pro-democracy leader at the time – told HKFP that he negotiated with Chinese diplomat Li Jusheng in the early 1980s. Li was acting as deputy director of Xinhua News Agency in Hong Kong.
Lee said he proposed three overseas judges out of five for cases at the CFA, and Li agreed: “The term ‘judges’ [in the Joint Declaration] was plural.”
Lee said he did not know there was opposition in the ExCo over the agreement: “At the time, I criticised that it was too early to table an ordinance to make it clear that there would only be one [overseas judge per case]. Turns out it was pressure from China again.”
Lee criticised Cradock as an “outrageous” negotiator who was afraid of negative reactions from China. He added that Cradock was unable to push Beijing to reveal their true bottom line, leading to one bad agreement after another.
“He told me that a ‘bad agreement is better than no agreement’ – and I told him this was wrong,” Lee said.
The final legislation for the CFA was delayed until 1995, with the plan remained largely unchanged since the initial proposal in 1991 which stated that only one overseas judge would be included.
The court was formally established on the day of the Handover on July 1, 1997.