CONFIDENTIAL
101204
MDHIAN 88
BECAUSE OUR LEGAL SYSTEM IS VERY DIFFERENT FROM THE AUTONOMOUS
LEGAL SYSTEM OF A COMMONWEALTH COURT WITH A CONSTITUTION. THE POSSIBILITY OF THE JUDICIAL REVIEW OF LOCAL LAWS IS INHERENT IN A COLONIAL LEGAL SYSTEM WHERE LAWS WHICH HAVE BEEN ENACTED BY THE LOCAL LEGISLATURE ARE VALID ONLY TO THE EXTENT THAT THEY ARE NOT
INCONSISTENT WITH A SUPERIOR SOURCE OF LAW SUCH AS AN ACT OF PARLIAMENT OR THE LETTERS PATENT. IN THIS RESPECT WE WOULD REFER YOU TO THE DECISION OF THE PRIVY COUNCIL IN REDIFFUSION CHONG KONG) LTD. V. AG OF HONG KONG (1970) AC 1136 AT PAGES 1156-7. IT WOULD
THEREFORE BE OPEN TO A MAGISTRATE IN HONG KONG TO TEST THE VIRES OF A LAW UNDER THE TERMS OF THE AMENDED LETTERS PATENT IN MUCH THE SAME WAY AS HE CAN TEST THE VIRES OF SUBORDINATE LEGISLATION UNDER AN ORDINANCE IN ORDER TO DETERMINE WHETHER HE HAS JURISDICTION TO HEAR A CASE. WE DO NOT WANT TO CHANGE THIS SYSTEM BY DEPRIVING THE MAGISTRATE OF THE POWER TO DETERMINE JURISDICTION IN CASE IT IS ALLEGED THAT WE ARE CHANGING THE LEGAL SYSTEM IN A FUNDAMENTAL WAY.
13. IN ANY EVENT THERE WOULD BE SEVERE PRACTICAL PROBLEMS WITH YOUR PROPOSAL. WE FEAR THAT PREMATURE OR UNNECESSARY REFERRALS TO THE SUPREME COURT OF SUBSTANTIVE BILL OF RIGHTS ISSUES WOULD BE ENCOURAGED BY ANY PROVISION WHICH REQUIRED OR PERMITTED THE TRANSFER OF BILL OF RIGHTS POINTS TO A HIGHER TRIBUNAL. WE WOULD PREFER TO RELY UPON THE NORMAL APPEALS PROCEDURE (WHICH WOULD IN EFFECT BE THE CASE STATED PROCEDURE IN THE MAJORITY OF CASES) IN
ORDER TO IDENTIFY CASES OF REAL IMPORTANCE.
FORD
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DISTRIBUTION
60
ΜΑΙΝ
57
.HONG KONG AGREEMENT
. (RESTRICTED)
LIMITED
HKD
HD/FED
RESEARCH D (FE)
PUSD NEWS D
PS/MR MAUDE
PS/LORD BRABAZON
MR MCLAREN
MR BURNS
ADDITIONAL
3
MR WHOMERSLEY LEGAL ADVISER MS BARRETT LEGAL ADVISER
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MR FIFOOT LEGAL ADVISER
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CONFIDENTIAL