judge of the common law today often does not need an
entrenched and justiciable bill of rights to safeguard
least some basic rights. Those "basic rights" will be found
clearly enough in the principles of the common law. Those
principles will be upheld at least by techniques of statutory
construction and common law exposition to the extent that the
new law on any subject is unclear. Of course, sometimes an
oppressive law, or one which derogates from "basic rights"
will be only too clear. It is then ordinarily the duty of
If the judge
the judge to give effect to that law.42
cannot in conscience do that, he or she must resign. A judge
has no legitimacy to deny effect to the law, if it is plain.
Some of the reasoning which supports the "compact" to which I
have referred between parliament and the judiciary, rests
upon assumptions about the democratic nature of parliament
presumptions that the people's representatives in
parliament would not deprive the people of basic rights
indication that this was parliament's
and
without a clear
intent.
43
In Hong Kong, there is not at the present, nor
will there be in the foreseeable future, a legislature which
is wholly democratic.
assumption" which lies behind the authority of the common law
technique of legal exposition will be missing. But another
basic premise may exist which authorises the continuance of
the judicial technique to which I have referred.
To this extent the "democratic
APPLYING INTERNATIONAL HUMAN RIGHTS NORMS
An additional technique is one which has been given
close attention in recent years. I refer to the function of
the judge in the
common law system in
in giving effect to
international human rights law in the course of performing
-
- 18
No comments yet.
Private notes are available after approval.