5
THURSDAY, OCTUS ( 27, 1983
HE SAID THAT FOR THE WELL BEING OF HONG KONG, THERE SHOULD BE ENSHRINED IN ANY FUTURE ARRANGEMENTS FOR THE TERRITORY PROVISIONS THAT WOULD:
*
SAFEGUARD THE RIGHTS OF INDIVIDUALS AND RIGHTS OF PROPERTY,
* SUBJECT THE GOVERNMENT OF THE TERRITORY TO THE
JURISDICTION OF ORDINARY COURTS, AND
* ENABLE THE CITIZEN TO QUESTION THE EXECUTIVE
ACTS OF THE GOVERNMENT BEFORE THE ORDINARY COURTS IN SO FAR AS THEY AFFECT HIS PERSON OR HIS PROPERTY.
+ IT MUST BE APPARENT THAT THE RULE OF LAW REQUIRES FOR ITS IMPLEMENTATION AN INDEPENDENT JUDICIARY FOR NO MATTER HOW SOUND A PRINCIPLE, IT IS OF ACADEMIC VALUE IF THERE IS LACKING MACHINERY FOR ITS IMPLEMENTATION.
+THE INDIVIDUAL MUST BE CONFIDENT THAT IF HE TAKES THE GOVERNMENT TO COURT, WHETHER FOR REDRESS OF A PRIVATE WRONG, OR IN ORDER TO QUESTION THE LEGALITY OF A GOVERNMENT ACT WHICH AFFECTS HIS PERSON OR HIS PROPERTY, HE WILL HAVE HIS COMPLAINT HEARD AND DETERMINED BY A TRIBUNAL THAT IS COMPLETELY IMPARTIAL, MR SWAINE SAID.
THE RULE OF LAW ALSO REQUIRES FOR ITS IMPLEMENTATION AN INDEPENDENT LEGAL PROFESSION WHEREBY ADVOCATES ARE EXPECTED TO BE FEARLESS IN DEFENCE OF THEIR CLIENTS, HE SAID,
HE POINTED OUT THAT WITHIN THE JUDICIARY, THE FINAL APPEAL FROM HONG KONG IS TO THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL IN LONDON, WHOSE MEMBERS ARE EMINENT JUDGES DRAWN FROM THE LAW LORDS OF THE HOUSE OF LORDS.
+ IT CANNOT BUT ENHANCE OUR LEGAL SYSTEM THAT OUR FINAL JUDICIAL ARBITER IS SO ILLUSTRIOUS A BODY.
+BUT I THINK THAT OUR SYSTEM CAN WITHSTAND THE SHOCK OF LOSING THIS FINAL RECOURSE TO THE JUDICIAL COMMITTEE, ALTHOUGH I THINK IT WOULD BE A GREAT PITY.
+WHAT I DO NOT THINK WE COULD WITHSTAND, HOWEVER, IS THE SHOCK OF HAVING THE DECISIONS OF THE COURTS OF HONG KONG SUBJECT TO APPEAL IN PEKING,+ MR SWAINE SAID.
HE STATED THAT QUITE APART FROM THUS ENGRAFTING ONTO HONG KONG'S SYSTEM +A HEAD THAT DOES NOT UNDERSTAND OUR LAW+, THERE WOULD BEAT WITHIN IT A HEART THAT IS ALIEN TO OUR TRADITIONS+.
FOR THE FUTURE PROSPERITY AND STABILITY OF HONG KONG, THERE SHOULD BE THE CLEAREST PROVISIONS FOR SAFEGUARDING THE INDEPENDENCE OF ITS JUDICIARY AND OF ITS LEGAL PROFESSION, AND FOR ENSURING THAT THE DECISIONS OF THAT JUDICIARY ARE NOT SUBJECT TO APPEAL IN PEKING, HE SAID.
THESE PROVISIONS, MR SWAINE SAID, SHOULD BE INCORPORATED INTO ANY FUTURE ARRANGEMENTS FOR HONG KONG.
16