*
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3
Court considered the drafting history of the Bill of Rights, the attraction of this interpretation might have been even stronger.
Interestingly, the Court of Appeal noted that the "inevitable result" of the interpretation it found "unavoidable" was that the Ordinance does not fully comply with the intention expressed in the preamble of the Ordinance, namely to incorporate as part of Hong Kong law the International Covenant on Civil and Political Rights as applied to Hong Kong, there being no similar restriction in the Covenant of the enjoyment of the rights guaranteed by it (p. 7). Yet had the Court adopted the Downey approach, its decision would have gone further towards fulfilling the intention expressed in the preamble to the Ordinance than did the interpretation the Court favoured. Such an interpretation would also have implemented better the Legislature's injunction in section 2 (3) that "[i]n interpreting and applying this Ordinance, regard shall be had to the fact that the purpose of this Ordinance is to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong, and for ancillary and related matters.'
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The conclusion that the Bill of Rights Ordinance was clearly intended to have no operation in respect of inter-citizen litigation would not seem to sit well with article 10 of the Bill of Rights. That article provides procedural guarantees before the courts which a person is entitled to enjoy in "the determination... of his rights and obligations in a suit at law", a phrase which refers primarily (although not exclusively) to private law relations. It seems curious that the Legislature could be thought to have included such a right in the words of the Bill of Rights but at the same time ensured that the Bill of Rights could not be invoked in support of it.
Some consequences of the decision
The result of the Court's decision will be that the same piece of legislation may be invalid if Government or a public authority seeks to rely on it, but valid if a private individual seeks to rely on it. One foreseeable consequence of the decision will therefore be a considerable amount of litigation over what bodies are "public authorities" within the meaning of the Ordinance. While that issue would have been a live one had the Court decided the case the other way, its resolution now becomes especially important as a practical matter. The phrase is not defined in the Bill of Rights Ordinance or in the Interpretation and General Clauses Ordinance (which contains a definition only of "public body"). Defining and identifying "public" authorities and functions can be an extremely difficult task; however, it seems likely that the courts will look for assistance to case law in the area of judicial review in the process of identifying public authorities.
Approach towards permissible limitations
The approach adopted by the Court in deciding whether section 52E (1) was a permissible restriction under the Bill of Rights also gives rise to concern. The Court held that such a restriction was "necessary" for the "protection of the rights... of others" (namely judgment creditors) and was therefore a permissible limitation within article 8 (3) of the Bill of Rights.
Instead of drawing on the wealth of international and comparative jurisprudence on the meaning of the word "necessary" in article 8 (3) of the Bill of Rights, the Court of Appeal appeared to place little value on that accumulated experience (p. 10 of the judgment, see p. 13 below). It is not clear whether the Court was suggesting that such material was not of particular assistance generally or just in this particular case. In either event, the approach to international and comparative material adopted by the Court appears at variance with the spirit of the decision in R v Sin Yau Ming, which noted that such
Bill of Rights Bulletin
December 1991