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Para. 21
Charter of Rights. A number of the rights referred to in the Bill are not precisely defined. This of course provides the Judiciary with substantial de facto legislative power. For instance, the general right to privacy referred to in this paragraph is a good example of the scope of this new power. Any contract that infringes that right will be illegal and any action infringing that right will give rise to liability in tort. "Privacy" is a vague concept. Foreseeably this right will have implications for a wide range of commercial and employment contracts and yet it will be left to the courts, not the legislature, to determine the limits of those rights and the consequences of an infringement. I am concerned that this may possibly disrupt well-established contractual obligations in the financial sector. This could have significant implications for Hong Kong's attractions as an international financial centre.
It also appears to be the case that Government will be affected as a
contracting party and employer by decisions in cases in which it is not a party. I believe it is usual for modern Bills of Rights to provide a power for the Attorney General to intervene as a party in disputes which are about to establish important precedents that will be binding on Government. This permits Government's perspective to be taken into account by the Court before a decision is reached. As the Bill is presently drafted a dispute could arise in a civil suit in which an important "rights issue" was to be determined but the AG would have no power to appear as the Government was not a party. If the right of action inter citizens is to remain should not an appropriate power to intervene be provided for?
Clause 6(3) gives jurisdiction to all Hong Kong courts and tribunals to determine issues relating to the Bill of Rights. Is it thought desirable that, say,
Magistrate's decision on such issues could