Bulletin Number Four 1986

court o f competent jurisdiction, arrest on areasonable suspicion that the arrested person has committed or is in the course o f committing, or about to commit a crime. It may also be necessary to lim it the freedom o f movement o f those o f unsound mind, those addicted to drugs or alcohol or suffering from infec tious disease for the sake o f public health and safety. There is also the lim itation justified on the ground o f immigration control and the deportation o f aliens, extradition o f criminals as well as repatriation o f fugitive offenders. 5. Provisions as to Rights and Freedoms Most o f the rights and freedoms together w ith their lim itations are provided by the existing Ordi nances currently in force in Hong Kong. A ll that is necessary is for the Basic Law to declare in Chapter 3 a statement o f law recognizing each and every one of the rights and freedoms and to preserve the local Ordinances. There is no necessity for us to follow rigidly the constitution o f other countries. 6. Provision as to Duties I now come to the concept o f duties o f the inhabitants. Rights and duties are correlative. One person's right gives rise to another's duty to respect it. I f rights and freedoms are to be accorded universal acceptance and recognition by society, they must entail that the person exercising them refrain from abuse. This principle applies generally whether the rights and freedoms are asserted by an individual, a group o f persons, a Government official or even the Government. Thus the imposition o f a duty on a person is for the protection o f others so as to create a proper balance for the stability of society. Here again the restrictions designed to prevent the abuse o f power are provided for in our Ordinances. To give one or two examples, the freedom o f speech and publication are subject to the laws o f defamation, sedition and incitement; the freedom o f association depends on whether the aims and objects o f the association are lawful. When it comes to imposing duties, all that is necessary is to state that all persons, including Government officials, are subject to the Basic Law and the other laws in force. 7. Access to Courts o f Law Section X III o f Annex I declares that every person shall have the right to obtain judicial remedies, and shall have the right to challenge the actions o f the executive in the courts. So far as the actions o f local executives of the Special Administrative Region are concerned, the proposition is clear. What has not been made clear is whether actions o f executives from the central Government posted in Hong Kong are to be w ithin the jurisdiction o f the courts in Hong Kong. By the same token, such actions should equally be liable to the same challenge and remedies. I raise this question in view o f the contents o f Section X II o f Annex 1. It is envisaged that the Central People's Government w ill station m ilitary forces in Hong Kong for its defence. little as I know o f the Chinese law, I understand that if a member o f the m ilitary force is involved in a crime or a dispute, whether in his official or private capacity, such a member is answer able to a court martial. The present law in Hong Kong is that, under similar circumstances, such a member o f the m ilitary force is answerable to the Civil Court whether in its civil or criminal jurisdiction. In other words, when a soldier commits a crime, he is tried by our criminal courts; if he commits a civil wrong, he w ill be answerable to our court in its civil jurisdiction. Whatever way his commanding officer wants to deal w ith him is only a disciplinary matter for the court martial afterwards. I f the Hong Kong law is to be preserved completely, this present system should be followed. Conclusion The Basic Law w ill be but a piece o f paper. Whether it can enable us to achieve the object o f pre serving the stability and prosperity o f Hong Kong w ill depend on good faith and good w ill. What, is more important is people's respect and observance o f the rule o f law. Ultimately it requires an impartial tribunal which w ill interpret and enforce the law w ithout fear or favour, malice or ill-w ill; and that such tribunal is permitted to perform its task without interference or political pressure. Much that has been said are matters o f approach by one individual to the question o f Hong Kong inhabitants' rights and duties. Some touch on matters o f politics and policy for the future. A judge is never a politician and only indirectly a law-maker. His function is to interpret and administer the existing law. To be involved in drafting o f legislation is there fore a novel experience. As a judge who is accorded the privilege to make suggestions to model the future law for the future jurisdiction, I welcome criticisms and suggestions to my personal views. I am grateful that I am permitted to take advantage o f this oppor tun ity to attract new and better ideas. However, I firm ly believe that given good-will and faithful inter pretation o f the spirit o f the Joint Declaration, adraft Basic Law acceptable to the Hong Kong inhabitants can be prepared. Some o f the problems I mentioned may or may not exist. Some o f my suggestions may or may not be sound. I f I err, I err w ith sincerity and ignorance. I can only plead for indulgence, for as Francis Bacon had said: ‘A much talking judge is like an ill-tuned cymbal'. I apologize for jarring your ears w ith such a lo t o f noise. 12 NEWS