relevant to Hong Kong, by the judiciary of Canada following
the adoption of the Canadian Charter of Rights and Freedo
common law country which moved from
on 17 April 1982.
being
charterless
to one
governed by the Charter, the
experience of the Canadian judiciary, in particular, has
obvious lessons for a Hong Kong judiciary called upon to
enforce basic rights. But So has the experience of the
judiciary in new Commonwealth countries which achieved their
independence with constitutions providing for guaranteed
basic rights. I shall return to these lessons. But first, I
wish to say something about the traditional and a modern role
of the judiciary of the common law in protecting basic
rights, even without an entrenched effective constitutional
bill of rights.
THE JUDICIARY AS GUARDIANS OF BASIC RIGHTS
At a recent meeting of Chief Justices from many
countries held in Washington, a question was posed for the
participants as to what right was the most fundamental;
that if all else
else were lost, that right should be insisted
upon as essential to a just legal order.
So
Various options were offered. Unsurprisingly perhaps,
the United States judge ventured the right guaranteed in the
First Amendment to that country's constitution: freedom of
speech and freedom of the press. Ideas, powerfully and
independently communicated will ultimately (if properly
upheld and protected by courts) defend other basic rights and
ensure that they are eventually observed.
The Canadian Chief Justice (Antonio Lamer) asserted
that the right of access to a judicial
to a judicial officer, independent
of the other branches of government, and to an independent
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