It entrusts the ultimate protection of the rights and freedoms of the individual to the courts. It looks to its judges for justice, criminal and civil, between private individuals, as well as between the Government or powerful organisations and private individuals.

Our laws have been drafted on those principles. They have been examined by all kinds of professional bodies, interest groups, consultative bodies, and by Legco with that in mind.

The power of the courts has always been treated with a respect which this community seldom accords the administration or the legislature. This is because the courts have always been thought to be impartial and free from any sectorial or self-interest.

But how well-founded is our faith in our judiciary as the ultimate protector, particularly in the matter of personal rights and liberties? Here one is no longer just dealing with independence or impartiality, or freedom from conflict of interest.

Here one is inevitably dealing with the personal attitude and values of judges. The law is a human institution. A decision of the court, being principles of law applied to a particular set of facts and circumstances, always allows for a measure of value judgment.

The criticism has been frequently raised in England - from which Hong Kong has adopted the common law system with its strength and weaknesses - that judges are far too conservative and reflect a narrow upper-middle class set of values. After all, they are mostly selected from that class.

In Hong Kong, criticism of individual judgments does occur, on the handling of witnesses, on sentences, as well as on matters of rights and liberty. However, the last category has, up to now, attracted the least widespread or lasting attention within the community.

Yet this does not necessarily reflect that our judges have always got it right where rights and liberty are concerned. The abysmal record of successful application of the Bill of Rights Ordinance is certainly food for thought.

While it may be argued that the ordinance's points have been raised more often than justified, the statistics may also indicate that the problem lies in the other direction. Whether rights ought to be given effect, in a particular case, is often the result of balancing those rights against other things. That the balance should so often go against the individual shows how little weight the court, or the judge concerned, attaches to those rights.

As pointed out by Dr Johannes Chan, whose expertise in ordinance cases is well recognised, the problem is thrown into sharp relief by the recent Privy Council decision releasing four Vietnamese migrants. The Privy Council judges in that case clearly adopted a much more serious attitude towards personal liberty than the Hong Kong Court of Appeal.

It was not just a matter of weight. It affected the relevant principle of law perceived. The Privy Council considered whether the executive authority concerned exercising a power of detention lawfully or not, was a matter for the court's determination.

Whereas the Hong Kong Court of Appeal considered it a matter for the executive authority to determine, the court's power is limited to examining whether the determination of the executive authority has been inconceivably unreasonable.

In other words, the highest court in Hong Kong is prepared to accept a greater measure of power for the executive than the Privy Council. Here lies the doubt: are we going to have a court of final appeal which will adequately protect the rights of the individual against the executive, particularly if that court is going to be largely constituted by elevating the present Court of Appeal? An even more sobering case is the Privy Council decision in the Ming Pao case. In that case, Ming Pao newspaper, together with three of its editors, was charged under section 30(1) of the Prevention of Bribery Ordinance for disclosing, in August, 1994, the fact that the ICAC was investigating the widely-publicised incident of several developers 'joining hands' in a land auction in May that year.

In the trial before the magistrate's court, the defendants submitted there was no case to answer on two grounds: that section 30(I), correctly interpreted, required that there be identified suspects in the investigation, and there were no suspects in the August 1994 investigation of the ICAC; and that, in any event, section 30(1) was impliedly repealed for inconsistency with the ordinance.

The magistrate accepted both points, and the defendants were discharged. On appeal by the Crown, only the second point was argued.

On that point, the Court of Appeal overturned the magistrates' decision.

The defendants appealed to the Privy Council.

In the decision given earlier this month, the Privy Council determined in favour of the defendants on the first point but against them on the second.

Thus, while the defendants went free, section 30(1) has become more unassailable than before, at least on the purely legal basis. Hailed as a 'compromise' judgment by lawyers, in that case the Privy Council deferred to the local courts and the local legislature for striking the balance between the freedom of information and the need for draconian anti-corruption legislation.

The Privy Council accepted the principles put forward by the defence counsel on what any legislation seeking to restrict human rights must be subject to, such as necessity and proportionality, but took the view that the judgment of the necessity and proportionality of section 30(1) is best left to the local courts.

Whether their lordships' line of reasoning is entirely faultless or not (and criticisms are certainly possible), the point I wish to make is that we are thrown back on the attitude and values of our own courts on a matter of balancing human rights against the power of the executive - with far from satisfactory results.

What these cases press home to us is that we do not only need an independent judiciary. We need judges with conviction over the protection of human rights, particularly in the court of final appeal.