basis that he has allegedly failed to comply with the present or some amended Royal Instruction in assenting to an objectionable ordinance: both the Colonial Laws Validity Act and decisions of Hong Kong courts confirm that non-compliance with the Royal Instructions does not affect the validity of a colonial law. (It would probably require at the least an amendment to the Letters Patent, limiting the legislative powers of LegCo to adopt such measures, to provide a basis for judicial review prior to 1997.)
16.
Also, critics familiar with humar, rights issues in other common law countries will point out, with justification, that the infringing nature of a bill may not be apparent
Or the
at the time it is presented to the Governor. cumulative effect of several bills each apparently innocuous on its own terms may be to abridge the human rights originally protected by earlier laws. Perhaps more importantly, a law which does not, in its own terms, appear to infringe any rights may, in its future application, have that effect. An obvious example is a law which gives broad discretion to officials.
In the exercise
the
of that discretion they may be acting within their authorizing ordinance, but the effect may be to infringe basic freedoms. Yet in a system relying on only one safeguard power of the Governor to refuse assent at the time of the adoption of the ordinance the courts would be powerless to intervene because the law once assented to, as a later law, would override the Bill of Rights.
17.
Further, the present Royal Instructions at least would not preclude a Governor from giving assent to legislation repealing part or all of the Bill of Rights itself, as no treaty precisely obliges Hong Kong to have a Bill of Rights as such protecting human rights : the ICCPR only obliges Hong Kong not to infringe human
rights.
1
10
Page 210Page 211
ood GOVT HOUSE
HK
48
No comments yet.
Private notes are available after approval.