TNAG-1365-FCO40-1811-Hong-Kong-Legislative-Council-(Powers-and-Privileges)-Bill-1-1985 — Page 134

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13. THE RELATIONSHIP BETWEEN THE LEGISLATURE AND THE COURTS ON

THE ONE HAND, AND THE EXECUTIVE ON THE OTHER, IS FINELY BALANCED.

IT HAS BEEN THE TRADITION IN COMMON LAW JURISDICTIONS THAT

NEITHER THE EXECUTIVE NOR THE LEGISLATURE SHOULD ENTER UPON THE SPHERE OF RESPONSIBILITY OF THE JUDICIARY. THE JUDICIARY LIKEWISE

DOES NOT ENACT LEGISLATION. THIS IS SOMETIMES REFERRED TO AS THE

DOCTRINE OF SEPARATION OF POWERS. I DO NOT INTEND TO DWELL ON THE

SCOPE OF THE DOCTRINE EXCEPT TO REMIND MEMBERS THAT IT IS NOT A NEW

PRINCIPLE OF CONSTITUTIONAL LAW, AND IT IS CERTIANLY NOT THE

SUBJECT OF THE PROVISIONS OF THIS BILL."!

14. THIS BILL DOES NOT PURPORT TO ALTER THE CONSTITUTION. ON

THE CONTRARY IT IS WELL WITHIN THE AUTHORITY AND POWERS OF THIS COUNCIL TO DEBATE SUCH A BILL. AS WITH ANY OTHER LEGISLATURE, NO COURT CAN QUESTION THE LAWS MADE BY THIS COUNCIL IN ACCORDANCE

WITH ITS CONSTITUTIONAL POWERS: IN THE SAME WAY IT MUST RETAIN

POWER OVER ITS OWN AFFAIRS AND PRECEEDINGS.''

15. HAVING SAID THAT, THERE IS NOTHING IN CLAUSE 24 THAT WOULD

PREVENT A PERSON CHALLENGING IN THE COURTS AN UNLAWFUL EXERCISE

OF POWERS. INDEED THE MOST FUNDAMENTAL QUESTION THAT COULD BE

ASKED WHETHER ANY SUCH POWER WHICH THE COUNCIL OR ITS

PRESIDENT OR OFFICERS PURPORTED TO EXERCISE UNDER THE BILL WAS

INDEED SO CONFERRED BY THE BILL. IT IS PLAIN ON A FAIR READING OF CLAUSE 24 THAT QUESTIONS OF THAT SORT ARE NOT EXCLUDED FROM THE

PURVIEW OF THE COURTS, SUBJECT ONLY TO CLAUSES 3 AND 4. BUT ONCE

IT IS CLEAR THAT WHAT WAS DONE WAS DONE IN EXERCISE OF A POWER

CONFERRED BY THE BILL OR BY THE STANDING ORDERS, CLAUSE 24 WOULL OPERATE TO PREVENT THE COURTS GIVING ANY KIND OF DIRECTIONS OR

GUIDELINES OR LAYING DOWN RULES PURPORTING TO REGULATE THE WAY IN WHICH THE POWER SHOULD OR SHOULD NOT BE USED. THAT IS THE SOLE

PURPOSE AND EFFECT OF THE CLAUSE.'!

16. ''I CANNOT THEREFORE SUPPORT THE SUGGESTION THAT CLAUSE 24

BE DELETED FROM THE BILL. HOWEVER THE ADMINISTRATION ACCEPTS THAT THE INTENTION BEHIND CLAUSE 24 MAY NOT HAVE BEEN ADEQUATELY

EXPRESSED IN THE BILL AS PUBLISHED. AN AMENDMENT TO BE TABLED

WILL MAKE IT CLEAR THAT THIS CLAUSE DEALS WITH THE LAWFUL'', THE

''LAWFUL'' EXERCISE OF ANY POWER CONFERRED UNDER THE ORDINANCE ON

THE STANDING ORDERS OF THE COUNCIL. THE INSERTION OF THE WORD

''LAWFUL' HAS SOME SIGNIFICANCE IN LAW BECAUSE IT OPENS THE

EXERCISE OF POWERS TO JUDICIAL REVIEW AND IF THE COURTS DECIDED

THAT THESE POWERS HAD (NEXT WORD UNDERLINED) NOT BEEN EXERCISED

LAWFULLY THE IMMUNITIES CONFERRED BY THIS CLAUSE WOULD NOT APPLY.

SIMILARLY THE ADMINISTRATION PROPOSES TO AMEND CLAUSE 17(A) TO MAKE IT CLEAR THAT THIS IS CONCERNED WITH THE DISOBEDIENCE OF ANY (NEXT WORD UNDERLINED) LAWFUL ORDER.''

17. 'AS I HAVE SAID, SIR, I DO NOT INTEND TO GO THROUGH EACH OF THE AMENDMENTS SUGGESTED BY MEMBERS TODAY BUT I TRUST THAT THE

CHANGES TO THE BILL WHEN IT APPEARS IN THE GAZETTE ON FRIDAY WILL

MEET MOST, IF NOT ALL, OF THE CRITICISMS WHICH HAVE BEEN MADE.

CONFIDENTIAL

/ "STRANGERS"