TNAG-2320-FCO40-3364-Human-rights-in-Hong-Kong-1991 — Page 131

democratic will.

In the tradition of the common law judge, this dence

of basic "rights", as defined by the common law is not a

charter for a judicial veto on the determined activities of

the legislature or the executive. This truism was pointed

out by the United States Supreme Court, emphasising the real,

but limited, function of judges in our tradition:

...

...

"Our system of government is

2 tripartite one, with each branch having certain defined functions delegated to it by the Constitution.

Here we are urged to view the Endangered Species Act 'reasonably and hence shape a remedy 'that accords with some modicum of common sense in the public weal'.

But is that our function?

Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto.

[I]n our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by a judiciary decreeing what accords with 'commonsense and the public weal'.

Our Constitution vests such responsibilities in the political branches. "26

Notwithstanding this

recognised subordination of the

judicial branch of government to the political branches, there remains a great deal for judges of the common law to do

in the defence of basic rights. If the judges of Hong Kong

have independence of the political branches of government

after 1997, there will be much for them to do in defending

basic rights, simply because this is inherent

is inherent in the day by

day activity of judging. It will be so whether or not the

Bill of Rights Ordinance survives the transition of

sovereignty power in Hong Kong in 1997 from the United

Kingdom to the PRC. It will be so whether the Bill of Rights

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