20.
From correspondence with the President of the New Zealand.
Court of Appeal it has been ascertained that in New Zealand interim
declarations have been granted against the Crown without
consequential difficulties; although the form and content of the New
Zealand remedy is substantially different to that proposed by the
Kempster Sub-committee. It was noted by the President, however, that
the remedy was rarely granted when sought as the New Zealand courts
prefer alternatively to order expedited hearings (see paragraph 32
below).
Criticisms of the Sub-committee's Recommendation
21.
The following objections have been made to the
recommendation :
22.
Constitutional
-
The proposal envisages judicial control of Government action far beyond the limits presently set. This point
was made by Lords Scarman and Wilbe force in the passages quoted in
paragraph 15 above.
23.
M
In these
Public Interest v Private Interest In our society the
Government has a very different function and role to that of ordinary
citizens. The Government uniquely is charged with responsibility to
protect and maintain the public interest and public safety.
matters the functions of the Crown involve duties and
responsibilities which no subject is required to undertake and for good reasons the law presently does not permit an individual to temporarily restrain the Government in the execution of its responsibilities.
24.
Any decision whether to introduce a remedy whereby an
individual can temporarily restrain Government action taken in the
public interest requires consideration as to whether a new balance
should be struck between the conflicting public interest and private rights. At present the policy of the law and constitution of Hong Kong is that where public and private interests so conflict the public interest shall prevail. Nevertheless, if it is subsequently
determined that the Government has acted illegally, the Government
will be liable to pay compensation to any affected individual.
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