ENG-1982 — Page 21

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REVIEW

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granted to the Governor. he shall in all cases consult with the Executive Council'; and the composition of that body, described below, ensures that the advice he receives fully represents the views of the community. He is empowered to act contrary to that advice 'if he shall deem it right to do so; but in any such case he shall report the matter to Us by the first convenient opportunity, with the grounds and reasons for his action.' Such a case has not arisen since long before the Second World War. A similar provision controls his power of commutation.

So far too as legislation is concerned, the Legislative Council, upon which private members of the community sit in the majority, retains in effect a power of veto, for whilst if the Governor may assent or not to Bills as he feels right, he can only exercise this power and when legislation has first been passed. The consent of the Legislative Council is a pre-requisite to the passage of any legislation, including of course financial provision under Appropriation Bills. Nor has there been any occasion within living memory when the Governor has refused his assent to a Bill duly voted and passed.

The Rule of Law: The Judiciary's Task

But most important of all as guardian of the Constitution and of the rights of every single citizen stands Hong Kong's independent Judiciary. Though the judges are formally appointed by the Governor, he is bound by law before doing so to take the advice of the Judicial Services Commission - an independent statutory body presided over by the Chief Justice and upon which, as well as the Attorney General, serve a High Court Judge, a barrister and a solicitor in private practice, and a prominent layman, presently an internationally-known and respected doctor who in the past has served on both the Legislative and Executive Councils. The judges, both of the Supreme Court and also of the District Court, have security of tenure in office until they reach retirement age; they are irremovable unless and until the Judicial Committee of Her Majesty's Privy Council in London, after due process of law, advises the Queen that the particular Judge 'ought to be removed from office for inability arising from infirmity of body or mind, or for misbehaviour.'

It is these judges of the Supreme Court, secure and independent in office, who ensure the supremacy of the law above all other powers in the State. It is they who rule upon the prerogative writs which any individual in Hong Kong may issue to test the legality of any of the government's actions which affect him. The writ of habeas corpus runs to protect the individual against unlawful arrest or incarceration. It is an Order from the Court to whoever holds the individual, whether a public servant, policeman or anyone else, to show good cause why he should not be released at once- and unless lawful reason for the detention is shown, the court enforces his release. Similarly the writs of certiorari and mandamus question the legality of administrative decisions or actions; again, unless such are affirmatively shown by evidence to be within lawful powers granted by legislation or law, then the court can forbid the action or reverse the decision, never mind who made it. In 1979, for instance, the courts ordered the police to return all documents seized under a search warrant issued by a magistrate, and all copies made, on the grounds that their action was unlawful because their powers of search under the ordinance did not extend to assisting a foreign force to investigate where there was no connection with any crime in Hong Kong.

So it is that in Hong Kong, as in all the other common law jurisdictions in the world, the ultimate bulwark of the Rule of Law, protecting the individual and enforcing legality, is the system of prerogative writs administered by a strong, fearless and independent Judiciary.