reasons why, for the
These
practical
realities may provide
enforcement of basic legal rights in Hong Kong
to
after 1997, the rôle of the judge will prove to be of the
greatest importance. If the judge is faithful to basic
principles of the common law, he or she will have legitimate
and readily available legal means to protect and uphold basic
rights, to defend the individual and to safeguard minorities.
JUDICIAL TECHNIQUES FOR SAFEGUARDING BASIC RIGHTS
Two
common law techniques at least compete for
acceptance in Commonwealth countries to provide the common
law judge today with potent means to defend basic rights
simply by performing judicial functions.
Its
The first is the notion that there are some common law
rights which lie so deep that even a legislature of full
powers has no authority to change them. This is a notion,
within the common law tradition, which has an ancient
lineage. It is grounded in ideas of natural law.
supporters remind opponents that even the respect for the law
made by parliament is ultimately grounded in a common law
principle that the courts will accord parliament's laws
respect. If then the basic rule is that of the common law,
the common law can add a qualification: that no legislator
may validly make a law which is
is so fundamentally shocking
that it must be declared to be not the law at all. It is not
necessary to go back to Chief Justice Sir Edward Coke to find
33 support for this notion. More recent support for it can
be found in authority in the United States where, in "rare
and exceptional circumstances" a judicial "safety valve" is
provided against the enforcement of a rule which leads to an
"unjust, unfair or otherwise absurd result" So that the
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