XN000022-1995-07-12 — Page 27

- 15 -

WHAT MEANS THE RULE OF LAW?

So what does the rule of law mean? I start by reminding honourable members that the common law underpins the principle of the rule of law which govern the way in which power is exercised every single day in this community. The first principle of the rule of law is that no-one, no-one exercising power, from the Governor down to the police constable on the beat or a clerical assistant, can do anything to affect the individual, his or her home, his or her property, his or her freedom, unless he can point to some specific provision in the law which authorises his action. If he fails to do that, he can be sued in the courts of Hong Kong and can be compelled to put right what he has done or to pay compensation for the wrong that he has done.

OF ADMINISTRATIVE

JUDICIAL AND EXTRAJUDICIAL REVIEW OF ACTION

Acts of the Government are subject to judicial safeguards. Judges have always stood firm against the abuse of power. Nowhere is a principle more graphically illustrated than in the criminal law where the power of arrest and detention before trial are subject to strict limits. The prosecution must prove its case beyond reasonable doubt. The trial must be public so that it can be seen that there is no injustice. Those who prosecute do not strive to secure a conviction: their duty is to see that all the facts are placed fairly before the court so that the verdict will be just -- I emphasise that word -- not merely expedient.

The exercise by the Government of discretionary powers can be challenged by the people of Hong Kong through judicial review. So decisions made by immigration officers refusing entry to Hong Kong, Licensing Tribunals refusing liquor licences and the Building Authority rejecting plans for property development -- just to mention a few examples -- are all judicially reviewable. In 1993, there were 123 applications for judicial review and in 1994, there were 75 such applications. The ability and the readiness of the community to challenge Government decisions, awkward though that may be from time to time for the Government, is a right that we regard as of great importance in buttressing the rule of law. We would not have it done the other way.

EQUALITY BEFORE THE LAW

I turn now to the second principle of the rule of rule which may be summarised as equality before the law. The principle was graphically brought home by arguably the greatest common judge of this century, Lord Denning in a major constitutional case when he said "Be you never so high, the law is above you." All persons, high or low, rich or poor, whatever their race, politics or religion, are subject to the law of Hong Kong administered by the courts.