Supreme Court (Amendment) Bill 1997
Following is a speech by the Attorney General, Mr Jeremy Mathews, in moving the second reading of the Supreme Court (Amendment) Bill 1997 in the Legislative Council today (Wednesday):
Mr President,
I move that the Supreme Court (Amendment) Bill 1997 be read the second time. The Bill aims to amend the Supreme Court Ordinance so as to re-enact, in an updated form, those provisions of the English Habeas Corpus Acts 1679 and 1816 that are relevant to Hong Kong, and to make consequential amendments to the Application of English Law Ordinance.
Freedom of the person is a fundamental human right. But that freedom would be illusory if there were no effective procedure for protecting it. This is recognized in Article 9(4) of the International Covenant on Civil and Political Rights which states that "anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."
Habeas corpus, the most famous of all common law writs, provides the means by which such proceedings may be instituted. The writ can be traced back to the thirteenth century, even before Magna Carta. It has proved its effectiveness throughout the centuries. In seventeenth century England, members of the parliamentary opposition, who had been imprisoned by command of the King, availed themselves of this writ to seek their release. And it was on a habeas corpus application that slavery was declared illegal in England in 1772.
The independent Judiciary plays a vital part in hearing habeas corpus applications. As a great English judge has said - "It has always been one of the pillars of freedom, one of the principles of liberty, that the judges stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law."
Today, the remedy of habeas corpus continues to be of constitutional importance as the classic common law guarantee of personal liberty. It is frequently resorted to in Hong Kong, particularly, in recent years, by Vietnamese detainees. But although habeas corpus has its origins in the common law, the two Habeas Corpus Acts of 1679 and 1816 developed the remedy in significant ways.