ordinary circumstances, to uphold their decrees.
Complian
with their decrees must therefore depend upon a convention
respected by the "political" branches of government and by
ordinary citizens. To the extent that those decrees require
the enforcement of laws which do not enjoy official support
(and may even be opposed by many citizens) courts depend upon
acceptance of the principle of the rule of law. It is this
principle, amongst other things, that will be tested in the
Realpolitik of Hong Kong after 1997.
REALPOLITIK: HONG KONG AFTER 1997
It is impossible to discuss the rôle of the judge in
the enforcement of basic rights in the context of Hong Kong
without alluding to matters of Realpolitik.
Some of the traditional opponents of guaranteed basic
rights, including those in my own country, have stressed the
adequacy of common law techniques to do the necessary work,
so long as society remains liberal and tolerant. The former
Chief Justice of Australia, Sir Harry Gibbs, told a Senate
Standing Committee on Constitutional and Legal Affairs in
Australia in 1985:
"If society is tolerant and rational, it
it does not need a bill of rights.
it is not, no bill of rights will preserve it."60
If jt
There would be some who would apply these words to Hong Kong
with a note of pessimism.
If, after 1997, the Government of
the PRC did not respect "basic rights" as these have been
understood in Hong Kong and elsewhere, no Bill of Rights
Ordinance, letters patent or "piece of paper" would stand
guardian for those rights. No judge's decree, nor any
learned judicial opinion would protect those basic rights.
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