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MONDAY, MAY 20, 1985
*BUT NOWHERE IS THERE TO BE FOUND A WRITTEN CONSTITUTION WHICH COMPREHENSIVELY SETS OUT WHERE POWER LIES, HOW POWER IS TO BE EXERCISED AND THE RIGHTS AND DUTIES OF INDIVIDUALS, + MR THOMAS SAID.
+
EXPLAINING THE SPECIAL FEATURES OF THE RULE OF LAW, HE SAID, FIRST, THE RULE OF LAW REQUIRED THAT THE POWERS OF THE CROWN AND OF ALL ITS SERVANTS SHOULD BE DERIVED FROM LAW, CLEARLY LIMITED BY LEGISLATION AND THE JUDICIAL DECISIONS TAKEN BY INDEPENDENT COURTS.
THIS WAS TO BE CONTRASTED WITH A DIFFERENT STATE IN WHICH THE SOVEREIGN OR THE PRESIDENT OR THE GOVERNMENT COULD EXERCISE POWERS BEYOND THE REACH OF THE LAW.
AT THE HEART OF THE HONG KONG SYSTEM OF GOVERNMENT, HE SAID, LAY THE RULE THAT NO ONE, FROM THE GOVERNOR DOWN THROUGH THE RANKS OF SECRETARIES, DIRECTORS, COMMISSIONERS, THE POLICE, ICAC, AND CUSTOMS AND EXCISE, COULD DO ANYTHING THAT AFFECTED THE INDIVIDUAL, HIS HOME, HIS MONEY OR HIS FREEDOM, UNLESS HE COULD POINT TO SOME SPECIFIC PROVISION OF THE LAW WHICH AUTHORISED WHAT HE HAD DONE.
IF HE COULD NOT DO THAT. HE COULD BE SUED IN THE COURTS OF HONG KONG AND COMPELLED TO PUT RIGHT WHAT HE HAD DONE OR TO PAY COMPENSATION FOR THE WRONG THAT HE HAD DONE,
MR THOMAS SAID THAT IN HONG KONG'S ORDINANCES, THERE WAS PROVISION FOR SEARCH WARRANTS TO BE ISSUED BY A MAGISTRATE UNDER SPECIFIC PROCEDURES AND THESE WERE AUTHORISED BY LAW.
THE LAW ENFORCEMENT BODIES, SUCH AS THE POLICE AND ICAC, COULD NOT GO BEYOND THE POWER GIVEN TO THEM UNDER PARTICULAR ORDINANCES, HE EXPLAINED.
+NO ONE ELSE, NOT EVEN THE GOVERNOR, CAN ORDER SEARCHES OF PRIVATE PROPERTY, HE SAID.
THE COMMON LAWYER'S DISLIKE OF ARBITRARY POWERS EXTENDED TO THE CRIMINAL LAW WHICH OPERATED ON PRINCIPLES THAT PROTECTED PERSONS FROM BEING PUNISHED MERELY BECAUSE THEY WERE DISSENTERS OR UNPOPULAR WITH THE POWERS THAT BE.
THE POWER OF ARREST AND THE POWER TO DETAIN BEFORE TRIAL WERE SUBJECT TO STRICT LIMITS, HE SAID.
*THE CROWN HAS TO PROVE ITS CASE BEYOND A REASONABLE DOUBT, + HE SAID.
THE TRIAL HAD TO BE IN PUBLIC AND CONFESSIONS WOULD ONLY BE ADMITTED AS EVIDENCE IF THEY WERE MADE VOLUNTARILY.
THOSE WHO PROSECUTED DID NOT STRIVE TO SECURE A CONVICTION BUT TO SEE THAT THE FACTS WERE FAIRLY PLACED BEFORE THE COURT, SO THAT THE VERDICT WOULD BE A JUST ONE, HE ADDED.
/A SECOND