TNAG-1596-FCO40-2181-Constitutional-development-in-Hong-Kong-1988 — Page 68

20.

From correspondence with the President of the New Zealand.

Court of Appeal it has been ascertained that in New Zealand interim

declarations have been granted against the Crown without

consequential difficulties; although the form and content of the New

Zealand remedy is substantially different to that proposed by the

Kempster Sub-committee. It was noted by the President, however, that

the remedy was rarely granted when sought as the New Zealand courts

prefer alternatively to order expedited hearings (see paragraph 32

below).

Criticisms of the Sub-committee's Recommendation

21.

The following objections have been made to the

recommendation :

22.

Constitutional

-

The proposal envisages judicial control of Government action far beyond the limits presently set. This point

was made by Lords Scarman and Wilbe force in the passages quoted in

paragraph 15 above.

23.

M

In these

Public Interest v Private Interest In our society the

Government has a very different function and role to that of ordinary

citizens. The Government uniquely is charged with responsibility to

protect and maintain the public interest and public safety.

matters the functions of the Crown involve duties and

responsibilities which no subject is required to undertake and for good reasons the law presently does not permit an individual to temporarily restrain the Government in the execution of its responsibilities.

24.

Any decision whether to introduce a remedy whereby an

individual can temporarily restrain Government action taken in the

public interest requires consideration as to whether a new balance

should be struck between the conflicting public interest and private rights. At present the policy of the law and constitution of Hong Kong is that where public and private interests so conflict the public interest shall prevail. Nevertheless, if it is subsequently

determined that the Government has acted illegally, the Government

will be liable to pay compensation to any affected individual.

/...10