TNAG-2320-FCO40-3364-Human-rights-in-Hong-Kong-1991 — Page 129

relevant to Hong Kong, by the judiciary of Canada following

the adoption of the Canadian Charter of Rights and Freedo

common law country which moved from

on 17 April 1982.

being

charterless

to one

governed by the Charter, the

experience of the Canadian judiciary, in particular, has

obvious lessons for a Hong Kong judiciary called upon to

enforce basic rights. But So has the experience of the

judiciary in new Commonwealth countries which achieved their

independence with constitutions providing for guaranteed

basic rights. I shall return to these lessons. But first, I

wish to say something about the traditional and a modern role

of the judiciary of the common law in protecting basic

rights, even without an entrenched effective constitutional

bill of rights.

THE JUDICIARY AS GUARDIANS OF BASIC RIGHTS

At a recent meeting of Chief Justices from many

countries held in Washington, a question was posed for the

participants as to what right was the most fundamental;

that if all else

else were lost, that right should be insisted

upon as essential to a just legal order.

So

Various options were offered. Unsurprisingly perhaps,

the United States judge ventured the right guaranteed in the

First Amendment to that country's constitution: freedom of

speech and freedom of the press. Ideas, powerfully and

independently communicated will ultimately (if properly

upheld and protected by courts) defend other basic rights and

ensure that they are eventually observed.

The Canadian Chief Justice (Antonio Lamer) asserted

that the right of access to a judicial

to a judicial officer, independent

of the other branches of government, and to an independent

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