1. On 22 July 1997, the Chief Executive of the HKSAR, Tung Chee-hwa, appointed 15 judges to serve in the COFA. See Xingdao ribao (Sing Tao Daily), 23 07 1997, p. 1.Google Scholar

2. Ghai, Yash, Hong Kong's New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (Hong Kong: Hong Kong University Press, 1997), p. 191.Google Scholar

3. The agreement decided the 4 to 1 ratio of local judges to overseas judges. Johannes Chan wrote: “The 4 to 1 ratio restricts the discretion of the Court conferred on it by the Basic Law to decide on the number of overseas judges and is hence in contravention of the Basic Law.” See Chan, Johannes, “To change or not to change: the crumpling legal system,” in Mee-kau, Ngaw and Si-ming, Li (eds.), The Other Hong Kong Report 1996 (Hong Kong: The Chinese University Press, 1996), p. 22.Google Scholar The debate over the COFA's composition divided the legal community; see Lau, C. K., Hong Kong's Colonial Legacy (Hong Kong: The Chinese University Press, 1997), p. 149.Google Scholar Apart from the rigidity of the agreement, there were other reasons why LegCo rejected it, such as the “violation” of the Basic Law and Sino-British Joint Declaration, the questionable status of the COFA, possible interference from the PRC, the lack of consultation, and the neglect of the interest of Hong Kong people. See Hing, Lo Shiu, “The politics of the Court of Final Appeal debate in Hong Kong,” Issues & Studies, Vol. 29, No. 2 (02 1993), pp. 105–131.Google Scholar

4. For Article 90, see The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Hong Kong: The Consultative Committee for the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, 04 1990)Google Scholar (hereafter The Basic Law), pp. 33–34.Google Scholar Article 90 also says the appointment of judges to the COFA requires the approval of LegCo and the reporting of such appointments to China's National People's Congress for record. After the draft bill was submitted to the Chinese side, PRC officials raised 15 questions concerning the draft bill. See South China Morning Post (SCMP), 17 03 1995, p. 1.Google Scholar

5. SCMP, 18 03 1995, p. 3.Google Scholar

6. Ibid.

7. Xianggang lianhebao (Hong Kong United Daily News), 25 03 1995, p. 1.Google Scholar This remark was also made by Lu Ping; see Xianggang lianhebao, 26 03 1995, p. 1.Google Scholar

8. See SCMP, 25 03 1995, p. 1.Google Scholar

9. See Eastern Express (EE), 28 02 1995, p. 2.Google Scholar

10. EE, 25–26 03 1995, p. 1.Google Scholar

11. Dongfang ribao (Oriental Daily), 25 03 1995, p. 2.Google Scholar

12. SCMP, 17 03 1995, p. 1.Google Scholar

13. SCMP, 25 03 1995, p. 4.Google Scholar

14. Kuai bao (Express Daily), 5 05 1995, p. 2.Google Scholar

15. See a useful review article, Yeung, Chris, “Waiting for the judgment,” SCMP, 3 06 1995, p. 16.Google Scholar

16. EE, 6–7 05 1995, p. 2.Google Scholar

17. SCMP, 6 05 1996, p. 4.Google Scholar But judges of the Australian federal courts and state courts can sit on courts in Commonwealth countries in the Pacific Ocean, like Tonga.

18. Editorial, “Recruiting judges,” SCMP, 6 05 1996, p. 18.Google Scholar One member of the top policy-making Executive Council, Chang Khen-lee, said: “Retired judges will be less up to date about the legal field. Judges who are yet to retire will be subjected to less influence by the Special Administrative Region government because they have secured a job in their original country.” See SCMP, 6 05 1996, p. 4.Google Scholar

19. SCMP, 3 06 1995, p. 4.Google Scholar

20. SCMP, 8 06 1995, p. 1.Google Scholar

21. A spokesman of the Hong Kong government, cited in SCMP, 8 06 1995, p. 1.Google Scholar

22. SCMP, 9 06 1995, p. 1.Google Scholar

23. Ming bao (Ming pao), 10 06 1995, p. 2.Google Scholar Also see SCMP, 10 06 1995, p. 1.Google Scholar For Pattern's reform proposals, see Our Next Five Years: The Agenda for Hong Kong (Hong Kong: Government Printer, 7 10 1992).Google Scholar

24. SCMP, 10 06 1995, p. 1 and also p. 2.Google Scholar

25. The Basic Law, p. 12.Google Scholar

26. Editorial, “A deal to support,” SCMP, 14 06 1995, p. 14.Google Scholar Also see SCMP, 10 06 1995, p. 1.Google Scholar This committee was named Judicial Services Commission before 1 July 1997. It is now called Judicial Officers Recommendation Commission. Since 1 July, Sir Joseph Hotung and Miss Eleanor Ling have not been appointed to the commission. Peter Wesley-Smith wrote: “The reason is purely political, as everyone knows. China could be expected to oppose both of them as members.” See Wesley-Smith, , “The SAR Constitution: law or politics,” Hong Kong Law Journal, Vol. 27, Part 2 (1997), p. 127.Google Scholar It was reported that Sir Joseph Hotung had donated some money in support of the election campaign of the former LegCo member Emily Lau, whose political views and critical perspectives alienated the PRC officials. The Chief Executive, Tung Chee-hwa, appointed two pro-China politicians to replace Sir Joseph and Eleanor Ling. Of the two pro-China politicians, one is the well-known Chan Wing-kei, the managing director of the Cheung Kong Manufacturing Factory. Chan's pro-Beijing views earned him a position in the 400-member Selection Committee which elected the Chief Executive in December 1996. For Chan's background, see Zi, Feng, Toushi dong jianhua (Looking through Tung Chee-hwa) (Xianggang choupijiang chubanshe, 07 1997), p. 266.Google Scholar With the benefit of hindsight, Anne Cheung was accurate in saying that “the composition of the [Judicial officers Recommendation] Commission may be tainted by the element of executive favouritism instead of adhering to the principle of judicial independence.” See Cheung, Anne S. Y., “The legal system: falling apart or forging ahead?” in Cheung, Stephen Y.L. and Sze, Stephen M.H. (eds.), The Other Hong Kong Report 1995 (Hong Kong: The Chinese University Press, 1995), p. 19.Google Scholar

27. SCMP, 13 07 1995, p. 1.Google Scholar

28. SCMP, 27 07 1995, p. 1.Google Scholar For the content of the COFA Ordinance, see International Legal Materials, No. 35 (1996), pp. 207–222.Google Scholar

29. SCMP, 27 07 1995, p. 5.Google Scholar

30. Dimbleby, Jonathan, The Last Governor: Chris Patten and the Handover of Hong Kong (London: Little, Brown and Company, 1997), p. 284.Google Scholar

31. SCMP, 13 06 1995, p. 1.Google Scholar

32. SCMP, 3 06 1995, p. 16.Google Scholar

33. SCMP, 13 06 1995, p. 1.Google Scholar At that time, the PRC and Britain argued about the establishment of the Container Terminals in Hong Kong's Kwai Chung district and the financial arrangements concerning the new airport at Chek Lap Kok.

34. SCMP, 5 05 1995, p. 1.Google Scholar

35. The Basic Law, p. 54.Google Scholar

36. See Chai, Yash, “Framework to judge law,” SCMP, 6 10 1997, p. 21.Google Scholar The committee has 12 members, half from Hong Kong and the rest from the mainland. The problem is that not all the six Hong Kong members are legal experts, such as Wong Po-yan and Raymond Wu. See Xianggang xinbao (Hong Kong Economic Journal), 4 10 1997, p. 3.Google Scholar It remains unclear whether the non-legal experts and the mainland Chinese members will interpret the Basic Law impartially and will consider seriously the opinions of the HKSAR's legal profession. One observer notes: “In the event that the CBL has political appointees, the opportunities for China to coopt pro-China elements into the committee exist. And in case Beijing uses the numerical majority of pro-China members to control the CBL's composition, any decision in the committee will be bound to favour the Chinese government.” See Hing, Lo Shiu, The Politics of Democratization in Hong Kong (London: Macmillan, 1997), p. 222.Google Scholar

37. See Ghai, , “Framework to judge law,” p. 21.Google Scholar Also see Ghai, , Hong Kong's New Constitutional Order, pp. 214–220.Google Scholar

38. EE, 17 05 1995, p. 2.Google Scholar

39. Kuai bao, 23 06 1995, p. 2.Google Scholar

40. Unlike the Chinese, the British had opposing views on the definition of the “acts of state.” See Governor Pattern's remarks reponed in Xianggang lianhebao, 25 05 1995, p. 2.Google Scholar

41. Ghai argues, for example, that for both the Chinese and British, acts of state refer to “a decision to exercise rights in the name of the state by the central government in foreign affairs”; “possess distinctive features, involving high-level decision making”; and are “not justiciable in the courts.” See Ghai, , Hong Kong's New Constitutional Order, p. 297.Google Scholar

42. Long, Simon, “A list of people not to trust in the wake of the Court of Final Appeal deal,” EE, 14 06 1995, p. 14.Google Scholar

43. Quoted in Dimbleby, , The Last Governor, p. 276.Google Scholar Dimbleby also revealed the disagreements between Patten and some British government officials, like the President of the Board of Trade Michael Heseltine and the British Ambassador in Beijing Sir Len Appleyard, over the issue of COFA in Hong Kong (see pp. 277–290). However, since the Prime Minister John Major and the Foreign Secretary Douglas Hurd were close friends of Patten, they trusted him and gave the Governor a final say on how Britain should negotiate with the PRC over Hong Kong's political reform and COFA.

44. EE, 8 06 1995.Google Scholar

45. Blyth, Sally, “Court of Final Appeal may break logjam,” EE, 12 06 1995, p. 1.Google Scholar

46. Rosario, Louise do, “A court too far,” Far Eastern Economic Review, 22 06 1995, p. 20.Google Scholar

47. Patten, Chris, “Protecting the law,” SCMP, 15 06 1995, p. 19. Emphasis added.Google Scholar

48. EE, 9 05 1995, p. 2.Google Scholar

49. SCMP, 12 07 1995, p. 2.Google Scholar Also see Kuai bao, 12 07 1995, p. 3.Google Scholar

50. Reported in Kuai bao, 13 06 1995, p. 2.Google Scholar

51. Letter to the editor, “Independence of judiciary threatened,” SCMP, 19 07 1995, p. 16.Google Scholar

52. Ching, Frank, “Patten accord: A Mixed blessing,” Far Eastern Economic Review, 29 06 1995, p. 36.Google Scholar

53. Patten, Chris, “Court of Final Appeal: the opening argument,” SCMP, 26 07 1995, p. 19.Google Scholar One commentator said that in the handling of the COFA bill, Governor Patten “has shown himself to be just another very ordinary Governor after all. But tongue-in-cheek, he danced around boasting a splendid victory he won for Hong Kong. Jesting in LegCo and looking oh-so-pleased with himself, he definitely looks more like Zhang Junsheng (the NCNA vice-director) of the day.” See Po, Wing Kay, “Governor courting failure after Court of Final Appeal,” EE, 14 06 1995, p. 15.Google Scholar

54. SCMP, 15 06 1995, p. 6.Google Scholar

55. Governor Patten said that “we accept that arguments about the definition of ‘acts of state’ raise important questions about the relationship between the Basic Law and the English common law, which China has pledged to uphold in Hong Kong after 1997.” See Patten, , “Protecting the law,” SCMP, 15 06 1995, p. 19.Google Scholar

56. Lee, Martin, “Courting disaster,” SCMP, 14 06 1995, p. 19.Google Scholar

57. Wade, E. C. S., “Act of state in English law: its relations with international law,” British Yearbook of International Law, Vol. 15, No. 98 (1934), p. 103Google Scholar, cited in Thompson, Brian, Constitutional and Administrative Law (London: Blackstone, 1993), p. 98.Google Scholar Also see Barnett, Hilaire, Constitutional and Administrative Law (London: Cavendish, 1995), p. 181.Google Scholar

58. Thompson, , Constitutional and Administrative Law, p. 98.Google Scholar

59. De Smith, Stanley and Brazier, Rodney, Constitutional and Administrative Law (London: Penguin, 1994), p. 158.Google Scholar For a similar definition, see Barnett, , Constitutional and Administrative Law, p. 182.Google Scholar

60. Bradley, A. W. and Ewing, Keith, Constitutional and Administrative Law (Essex: Longman, 1994), p. 330.Google Scholar In this case, the House of Lords held that the Crown could not use the act of state as a justification to argue that the court did not have jurisdiction over a plaintiff's claim that British forces had occupied a hotel in Cyprus.

61. See The Basic Law, p. 12.Google Scholar Actually, Article 19 of the final version of the Basic Law is an improvement to the first draft. See Wesley-Smith, Peter, Constitutional and Administrative Law (Hong Kong: Longman, 1994), p. 106.Google Scholar

62. Ibid. p. 93.

63. Patten, Chris, “Hong Kong's future,”Google Scholar letter to the editor, Economist, 24 06 1995.Google Scholar For a similar view expressed by Patten, see Xin bao, 12 06 1995, p. 2.Google Scholar The Director of the Administration of the Hong Kong government, Richard J.F. Hoare, also wrote a number of letters to respond to public criticisms on the COFA deal. See his letters to the editor of the SCMP, 6 07 1995, p. 16Google Scholar; 24 July 1995, p. 18; and 31 July 1995, p. 16.

64. Kwai-yan, No and Chan, Quinten, “No to backdown overacts of state,” SCMP, 10 06 1995, p. 3.Google Scholar

65. The Basic Law, p. 32.Google Scholar

66. Dimbleby, , The Last Governor, p. 289.Google Scholar This principle was that the British side should neither yield on “acts of state” nor include it in the COFA bill.

67. Khen-lee, Denis Chang, “The COFA draft bill and ‘acts of state’,” Ming bao, 20 06 1995, p. C6.Google Scholar Cited in Richard Hoare's letter to the editor, “Passing bill in best interests of Hong Kong,” SCMP, 1 07 1995, p. 16.Google Scholar

68. Kuai bao, 4 04 1995, pp. 2 and 5.Google Scholar

69. SCMP, 25 07 1995, p. 2.Google Scholar

70. Kuai bao, 27 06 1995, p. 2.Google Scholar Also see SCMP, 1 07 1995, p. 6.Google Scholar Li's opinions on law and politics are a far cry from her father Simon Li Fook-sean, a former judge and a member of the Preparatory Committee which was set up by China to handle Hong Kong's transitional affairs. See Nadel, Alison, “Poles apart in the family court,” Sunday Morning Post, 5 05 1996, p. 2.Google Scholar

71. EE, 13 06 1995.Google Scholar LegCo member Simon Ip also implicitly agreed with Allcock's view. Ip remarked: “There is not a problem. First, once the bill is enacted it will be law, even though it will not come into operation or establish the COFA until 1 July 1997. The legislative procedures for the COFA bill will have been completed. It does not require another enactment for it to be effective after the handover. If one does not accept the first point, there is a second: that the Basic Law provisions about the transition of laws are not exclusive, they do not imply laws not yet in force cannot straddle the changeover.” See EE, 14 06 1995, p. 2.Google Scholar

72. Article 8 says, “The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the HKSAR.” See The Basic Law, p. 7.Google Scholar Article 18 also states that “The laws in force in the HKSAR shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region.” The Basic Law, p. 11.Google Scholar

73. See Ming bao, 13 06 1995, p. A4.Google Scholar

74. See Kuai bao, 16 06 1995, p. 5Google Scholar; and 20 June 1995, p. 3. Also see EE, 16 06 1995, p. 2.Google Scholar

75. Xianggang lianhebao, 13 06 1996, p. 4.Google Scholar

76. Loh, Christine, “Will COFA deal leave Hong Kong happy ever after?” EE, 15 06 1995, p. 15.Google Scholar

77. See Xianggang lianhebao, 30 06 1995, p. 2.Google Scholar

78. See Davis, Michael C., Constitutional Confrontation in Hong Kong (London: Macmillan, 1989).Google Scholar Also see Clark, David's review article, “Taking the Basic Law seriously?” Asian Journal of Public Administration, Vol. 12, No. 2 (12 1990), pp. 256–270.CrossRefGoogle Scholar

79. Xianggang lianhebao, 9 06 1995, p. 4.Google Scholar

80. Xianggang lianhebao, 5 05 1995, p. 2.Google Scholar

81. One commentator concludes that the DAB represents “the Hongkongized version of the CCP.” Hing, Lo Shiu, “Political parties in a democratizing polity: the role of the ‘pro-China’ Democratic Alliance for the Betterment of Hong Kong,” Asian Journal of Political Science, Vol. 4, No. 1 (06 1996), p. 121.Google Scholar

82. See Ming bao, 13 06 1995, p. A4.Google Scholar His remarks were in response to Christine Loh's view that “acts of state” should include “only defence and foreign affairs.” Li was one of the contenders for the position of the Chief Executive of the HKSAR in December 1996 and he was defeated. Tung Chee-hwa, a shipping tycoon, won the election, and became the Chief Executive-designate. On 1 July 1997, Tung was sworn in as the first Chief Executive of the HKSAR.

83. Ming bao, 13 06 1995, p. A4.Google Scholar

84. See “Courting disaster,” Far Eastern Economic Review, 22 06 1995, p. 5.Google Scholar

85. Sunday Morning Post, 23 07 1995, p. 1.Google Scholar

86. See EE, 10–11 06 1995, p. 2.Google Scholar One senior government official said that he expected the Liberal Party to face the pressure from business people and functional constituencies (like business, industrial and commercial groups) to change the party's position on the COFA bill.

87. Kuai bao, 17 06 1995, p. 5.Google Scholar

88. Allen Lee himself admitted after the LegCo vote that managing the Liberal Party was “more difficult than anticipated.” See SCMP, 29 07, 1995, p. 15.Google Scholar

89. Xianggang lianhebao, 15 06 1995, p. 2.Google Scholar

90. For Martin Lee's assertion, see his “COFA: the opening arguments,” SCMP, 26 07 1995, p. 19.Google Scholar In fact, the South China Morning Post tended to be quite pro-administration and critical of those who opposed the COFA deal reached by Britain and China. See editorial, “Bill's critics wrong,” SCMP, 22 07 1995, p. 14Google Scholar; and editorial, “Defining acts of state,” SCMP, 27 07 1995, p. 16.Google Scholar