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WEDNESDAY, JULY 27, 1983
BILL SEEKS POWER TO OVERRULE FOR APPEALS COURT
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THE SUPREME COURT (AMENDMENT) (NO 2) BILL 1983 SEEKS TO EMPOWER A COURT OF APPEAL COMPRISING FIVE OR MORE JUDGES TO OVERRULE AN EARLIER DECISION BY THE COURT WITH LESS THAN FIVE JUDGES, THE ATTORNEY GENERAL, THE HON MICHAEL THOMAS, SAID IN THE LEGISLATIVE COUNCIL TODAY.
THIS IS PROVIDED THAT IT IS SATISFIED THE LAW APPLIED IN THE EARLIER DECISION WAS WRONG OR CONFLICTS WITH A DECISION OF THE HOUSE OF LORDS, THE PRIVY COUNCIL OR ANOTHER DECISION OF THE COURT OF APPEAL.
THE COURT WILL BE ABLE TO APPLY THE CORRECTED LAW TO THE CASE BEFORE IT OR GIVE NOTICE THAT IT WILL APPLY THAT LAW IN THE FUTURE.
THIS POWER IS FOR THE PURPOSE OF AVOIDING UNDUE DISTURBANCE TO THE AFFAIRS OF PEOPLE WHO HAVE ACTED ON THE BASIS OF THE HITHERTO ACCEPTED VIEW OF THE LAW.
+ IN EXERCISING ITS POWERS, THE COURT IS DIRECTED TO HAVE REGARD TO THE DANGER OF THIS DISTURBANCE AND THE DESIRABILITY OF CERTAINTY IN THE LAW, MR THOMAS SAID ON THE SECOND READING OF THE BILL.
TWO ACADEMIC LAWYERS WHO HAD BEEN CONSULTED SUPPORTED THE BILL IN PRINCIPLE. WHILE THE LAW SOCIETY HAD STATED IT HAD NO OBJECTION TO THE PROPOSALS, HE POINTED OUT.
BUT THE BAR COMMITTEE HAD DECIDED BY A MAJORITY THAT THE BILL COULD NOT BE SUPPORTED, HE ADDED.
THE BAR COMMITTEE'S MAIN OBJECTIONS WERE THAT THE PROPOSALS WOULD GIVE THE JUDGES THE POWER OF LEGISLATION, LEADING TO UNCERTAINTY IN THE LAW.
→THE BILL WILL ENABLE A SPECIALLY CONSTITUTED COURT OF APPEAL TO ADOPT A STRAIGHT-FORWARD APPROACH AND THROW OFF THE FETTERS OF A PREVIOUS DECISION WHICH IS CLEARLY WRONG, MR THOMAS SAID.
UNDER THE BILL, A PREVIOUS DECISION OF DOUBTFUL MERIT COULD BE PUT RIGHT IN HONG KONG WITHOUT THE SUBSTANTIAL EXPENSE AND TIME INVOLVED IN AN APPEAL TO THE PRIVY COUNCIL, HE ADDED.
+1 AM CONFIDENT THAT A COURT OF FIVE JUDGES WILL NOT ACT ON A WHIM OR A FANCY WHERE IT CHOOSES TO EXERCISE THIS NEW POWER AND I VENTURE TO THINK IT WILL BE SPARINGLY USED.
+I HAVE CAREFULLY CONSIDERED THE OBJECTIONS OF THE BAR COMMITTEE AND MY VIEW IS THAT THE BILL SHOULD NONETHELESS BE SUPPORTED, MR THOMAS SAID.
DEBATE ON THE BILL WAS ADJOURNED TO AUGUST 10.
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