ENG-1982 — Page 22

REVIEW

9

There are those who point to the concept of parliamentary democracy as Britain's great gift to the world. But that system has not always proved easy to transplant, nor has it always flourished upon other shores. Many would argue with force that the greater contribution has been the transplantation of the English common law, and with it the Rule of Law, into so many countries on every continent throughout the globe. Certain it is that the Rule of Law has played an inestimable part in creating amongst outsiders that trust and confidence in Hong Kong upon which the economic miracle has been and is totally dependent. Without it, Hong Kong could not be what it is today.

The determination of the law that the individual must never be subject to arbitrary oppression explains too the way that the criminal law is enforced. Neither the Government nor even the Governor himself has any control over criminal proceedings. The Attorney General, subject to direction from no man, has sole responsibility for them. The Court of Appeal in 1980 affirmed that his powers and duties in that area of the Royal Prerogative are identical to those of his English counterpart. In 1924, in Parliament, the Attorney General, later to become Viscount Simon, stated the law thus:

'The Attorney General should absolutely decline to receive orders even from the Prime Minister or Cabinet or anyone else... (as to whether)... he should prosecute or not.' On February 16, 1959, the Prime Minister, Mr Harold MacMillan, reiterated the same proposition in the House of Commons, and went on to say:

'I think it would be... a very bad thing if this House or the Cabinet of the day tried to influence the semi-judicial functions of the Law Officers in the institution or dropping of prosecutions...

So in Hong Kong today, the decision whether any citizen should be tried for crime rests not with the police or the Government but in the quasi-judicial hands of a Law Officer of the Crown, Her Majesty's Attorney General for Hong Kong. But his power is only to charge, or to stop the proceedings by entering a nolle prosequi. He cannot convict. It is the independent Judiciary, in appropriate cases with the assistance of a jury of his fellow citizens, which has the task of deciding a man's guilt or innocence, and thereafter of imposing the proper penalty on those found guilty.

The Role of the Government

In England the origins of the Civil Service are to be found in that small body of servants, the most famous of whom perhaps was Samuel Pepys, who assisted the private advisers surrounding the Monarch. As the role of the constitutional monarchy developed, so the advisers became Ministers in Parliament and their helpers burgeoned into the Civil Service as we know it today. In Hong Kong too the Civil Service is the handmaiden of the Executive; by Article XIV of the Letters Patent the Governor, as head of the Executive, is empowered to 'constitute and appoint such . . . public officers', and under Article XVI to him is reserved the prerogative powers of dismissal, suspension or other disciplinary action. The Royal Prerogative remains the foundation upon which the Civil Service rests.

The division of responsibilities under the Constitution gives to the Executive, the Government of Hong Kong led by its Governor, the duty to conceive, appraise, refine and then propose new policy or legislation. But the Executive and Legislative Councils, each in their respective fields, have the veto. The Government may propose, but ExCo and LegCo dispose; in the Finance Committee of the Legislative Council the Unofficial Members have an overwhelming majority and so control all details of the disposition. The decisions of the Councils once taken, it is the government then who must implement and execute approved legislation or policy.