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May 11, 1908.]
CHÍNA OVERLAND TRADE REPORT.
that no action will lie and he cannot bring an by reason of the provision in the Bill, action of any sort against the individual officer
procedure of the tribunal of appeal is an- satisfactory. These objections osa bé to large extent modified or removed by amendments some of which have been suggested above and others indicated below, and if that is done, I interpretation of
The Building Authority by a strained believe the scheme as a whole will be the most number of the sections of the Ordinance Boy one of a very large workable that can be devised under the present | could inflict damage amounting in the aggre- oiroumstances of the Colony.
gate to many thousands of dollars on the pro- The Building Authority is probably the in-perty owners of the Colony and as malters stand dividual in the Colony most capable of giving an there is n independent and unbiassed judgment upon the compelling either a correct interpretation of means open to the victims of sort of questions with which he will be called upon under this sobeme to decide.
the law or reparation for injury inflicted. Mr. But he is an in- Pollock has put forward a proposal in the dividual and human, does his work in private Legislative Council which if accepted will without having to formulate the reasons for bis afford a obesp and speedy means of obtaining aots, as, for instance, a judge or a statesman bas, and is sometimes one individual and some-
au authoritative interpretation of any section of which times another.
the meaning is ia Consequently be will be The method is one which has been found. by dispate, influenced by personal predilections, and there practical experience to work well in the case is a grave risk of lack of continuity in policy. of disputes as to the proper interpretation hence the necessity recognised in Bill and of wills and instruments regulating trusts, to Ordinance of providing an appeal from his which purpose it was first applied not very decisions.
in which it has been used for the interpretation any years ago. I am not aware of any instance of a statute bat there is no reason why it should not work equally well and relieve properly owners in this Colony of the nec saity of employing a procedure to ascertain their rights in the same more cambrons and expensive way as it has relieved trustees and executore.
If amendments on the lines I have indicated above are made in the Ordinance I believe it will in future work with as much smoothness as such a stringent Ordinance ever can work, but without some such amendments there will be never-ending friction between landowners and the Government,—Yours, etc.,
The tribunal of appeal provided is the Governor in Council, which consists of H. E. the Governor and a number of official and unofficial members, among whom is always the Director of Public Works, For an appeal tribunal to be satisfactory, it must be competent and unbiased, its procedure must be such as to give each party to the controversy upon which it has to adjudicate a fair and equal opportunity to state his case and answer the case of the other side, and it should be public, or at least its decisions should be publicly and fully re- corded in an understandable form, especially in the case of an appeal from the decision of an officer who necessarily does his work in private. If these
reformed
are the main requisites of a satisfactory tribunal, the present system must be materially amended before it can be considered satisfactory, In the fint place the Direc or of Public Works is also the Building Authority. and takes part in the deliberations of the Council and advises the Governor upon his own acts as Building Authority without the person who is appealing against his decision having any opportunity of meeting, or even knowing the arguments he advances in support of that decision, and in the second the proceedings of the Council are secret and no record of its decisions or of the reasons or principles upon which it has acted in coming to a decision is available to any of the public. That the Governor in Council under procedure would be the best available, though not an ideal, tribunal I personally believe; at any, rate, no other has as yet been suggested which would compare with it in essentials. The reforms required are obvious. The D.P.W. must, for the purpose of the fair exercise of this appellate jarisdiction o ly, be deprived of his privileged position, and what- ever advice or reasons he gives H.E. or the hon. members of the Executive Council in support of his decision as Building Authority must be either communicated to, or advanced in the hearing of the party appealing, in such a manner as to give him & fair opportunity of answering the case made Ly the Building Authority. Merely to give the party appealing the right to appear per- sonally, as is proposed in the Bill, is utterly illusory, and does not meet the real objections to the present procedure.
MARCUS W. SLADE.
SANITARY LAW APPEALS.
(TO THE EDITOR OF THE DAILY PRESS. ")
Hongkong, May 5th. S18,-Concerning the question of appeal, about which Mr. Slade has addressed you in a very able letter, I said at the Council meeting last Thursday "the future success or failure of the reorganized department will depend largely upon the broadmindedness of its President who whilst on the analterable determination of government to one hand will carry out the cleanse this town in the interests of Public Health, will on the other hand initiate changes and reforms where the Law is found to be inapplic-
able.
And it is to be hoped that when appeals to the Governor in Council are heard the Pree aident will be present to plead the cause of common sense,"
Amplified in a manner which would have been impossible without exhausting the Council's patience, what I intended these words to convey was that the President should be a man selected for his breadth of view and, sympathy with those who suffer by the operation of the Law that he should make it his special concern not to allow anything to be done which in his opinion was not necessary from a Public Health point of view; that in fact he should protect the property owners and Chinese in much the same way as the Registrar General protects the Chinese in other directions.
The Medical Officer of Health and the Director of Public Works being experts cannot, by reason of an expert's training, be expected to regard questions of detail with an unbiassed mind or with that liberal and comprehensive spirit that mark the good administrator such as I hope the new l'resident will be. For this reason therefore neither of them should be heard by the Governor in Council without the Pre-
Under the Bill and Ordinance as they stand the Building Authority is practically an autocrat. There
as is shown above no effective appeal against his decisions on questions in which he has a discretion, and the number of these it is proposed to enlarge enormously, and on questions as to his duties and obligations and the extent and nature thereof he is the sole judge. No legal proceedings of any sort can under the Bill be taken to test the accuracy of his judgment or to compel thesident being also heard. performance of his duties. The sole remedy left to an owner is to refuse to obey an order and let the B.A. prosecute him, and then defend himself by showing the illegality of the Order, but in cases in which the Building Authority breaks the law by not perform ing an act he ought to perform, the owner has absolutely no remedy if the B.A. bas done what he has "done bona-fide for the purpose of executing this Ordinance." He cannot bring an action of any sort against the Government because the act complained of is a wrong, so
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297
[TO THE EDITOR OF THE “DAILY PRESS."]
Hongkong, 6th May 1908. SIR,-The letter addressed to you by Mr. Ordinance, stated with oogency and clearness Marons Slade, on the subject of the now
reasons in support of the contention that there is need of improvement in the provisions made for appeal against the decisions of the Buil iog referred to in Mr. Osborne's speech on the Authority. The exis ence of that need was
there should be some more simule form of second reading of the Bill, when he urged that procedure. To-day in your columns, he suggests Sanitary Board should be the constituted He suggests that the President of the
combating those of the Direc or of Pablic advocate of the property owners' views in
sight, the simplicity of this method is calculated Works before the Governor in Council. At first
to prove attractive, but second thoughts suggest applies to cases in which exemption has ben a twofold objection. In the first place it only
provides that a first appeal shall be made to the refused. In such cases the now Ordinance Sanitary Board. this first appeal bad failed, assuming, that is Assuming a case in which that the Sanitary Board had confirmed a decision of the Building Authority, it is difficult to see how the arrangement could be relied upon to point of view. work satisfactorily from the property owners' The President of the Board, possibly agreeing with, possibly having stated upholding the Building Authority's decision, his agreement with, a majority of members ia weald hardly be an ideal advocate for the appellant. Even if possessed of a high character for impartiality and therefore to be trusted in stating the case against himself, the fact that he condemned the arguments which it would be his duty to advance would hardly tend to give them weight, and a the event of an appeal thus put forward being dismissed, the pro- perty owner would hardly feel secure in the belief that his case had been adequately repre- sented. On the contrary it is at least probable that the landlord would prefer to be present himself or in the person of a representative. This the amending Ordinano, provides for, that he will be allowed to argue his case. as it is, but the wording does not indicate The owner permitted to be present.
or his representative is merely To remedy this by enabling cases to be argued before the Governor in Council is the first important suggestion made by Mr. Slade. It would som only just for stating a case but also for hearing and that opportunity should be granted not only answering objections raised against it. Any system which retains to the Director of Public the appellant at a serious disadvantage. At Works the last word in seoret onnolave places
the same time Mr. Blade points out that even if this concession were made there would still remain the importance of publicity being given of making known, in some form accessible to to the proceedings. The argument in favour the public, the reasons for decisions arrived at with regard to claims for exemption is based on perty owners to gain some fairly definite idea a very real need for precedents enabling pro- of what they may expect under given con- ditions. An intolerable hardship would arise if the power of granting exemptions were to be exercised in a capricious manner and even the existence of uncertainty constitutes a genuine grievance.
With a President such as I have pictured, the cheapest, quickest, most direct and most effective method of settling differences of opinion would be to submit the case through him to the Governor and I hope this method will be given a fair trial rather than burden appellants with the expense, trouble and delay of making application to the Law Courts though I fully agree with Mr. Pollook and Mr. Slade that this would be prefer ble to the present arrangement. —Yours truly,
EDWARD OSBORNE,
grievance, as far as I understand his letter. Mr. Osborne's reme dy does not touch this Nor, and this is the second objection to it, does it hold out any remedy in cases of dispute over the interpretation of the Ordin- ance. In the majority of such cases the new proposals would have the effect of doing. away with all possibility of obtaining redress against faulty roadings of the law. Herein is felt to be another grievance, the removal of which is the aim of Mr. Pollock's proposal. oreating a body of precedents the meaning of That proposal is based upon the idea that by doubtful sections would in course of time be made plain. There is an objection to making appeal easy if by so doing cases will be multi- plied but the present suggestion would seem to hold out a hope of ultimately reducing the number.
There are thus seen to be two distinct points at issue; exemption on one hand; interpretation
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