TNAG-2320-FCO40-3364-Human-rights-in-Hong-Kong-1991 — Page 136

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Generally speaking, modern judges of the common law have

asserted their function to protect fundamental rights

preferring the second choice, if it is open on the language

of the law under consideration.

Sometimes

There is little exposition of how this function came

about or how it came to be accepted by the other branches of

government.

that acceptance is grudging and

reluctant. But there is a kind of compact between the courts

and the "political" branches of government that the courts

will declare the meaning and effect of laws made by the other

branches and the others will accept that declaration. In

doing so, the courts will presume that those other branches

did not (unless they made their intention absolutely clear)

intend to derogate from "basic rights", as the courts in turn

declare them.

In a recent case I attempted to explain the fundamental

principle upon which this basic political compact rests:

"Thus

..

the danger of legislative oversight [should be] mentioned. Equally dangerous is the loss of attention to basic rights which may accompany the very growth in the quantity and complexity of legislation which is such a feature of our time. Legislatures, both Federal and State, have recognised this problem by the appointment of Parliamentary committees, with terms of reference designed to call to notice such problems whenever they occur. However, it is inevitable that some such problems will escape notice. This is where the assertion by

has

the courts of the role of construction such a great social utility. It may delay, on occasion, the achievement of the intention which Parliament had. It may temporarily interrupt the attainment of an important legislative purpose. It may even sometimes give rise to a feeling of frustration amongst legislators and those who advise them.

But the delay, interruption and frustration are strictly temporary. And they have a beneficial purpose.

to permit Parliament, which has the last say, an opportunity to clarify its purpose where the Court is not satisfied that the purpose is

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