TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 171

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.... and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the foregoing provisions of this chapter to the protection of which the person concerned is entitled:

Provided that the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law." (See Article 15(2) of the Constitution of Bermuda in SI 1968 No 182).

Hong Kong might like to consider it.

On

14. Connected to the grant of remedies is the question of which courts shall have jurisdiction in relation to proceedings that assert a contravention of the Bill of Rights. Some of the rights (eg those referred to in Articles 5, 6 and 11) may raise questions in the most subordinate of courts and the rights are such that it would be unjust and inconvenient were those courts not to have jurisdiction. the other hand, questions may arise, eg as to the permitted restrictions on freedom of thought or expression or association where it is necessary to balance a particular right as against other legitimate interests recognised by the Covenant. In such cases, particularly where there may well be an issue as to the consistency of some other law with the Bill of Rights, it must be doubted whether the Magistrate's Court, or even the District Court, are qualified adequately to address the issues.

15. It would therefore be desirable to give thought to making special provision for the transfer of proceedings alleging a violation of certain provisions of the Bill of Rights or certain issues (such as a conflict between the Bill and some other law) to the High Court. A variation on this would be to require a lower court to refer upwards any such allegation unless it was satisfied that the raising of the issue was frivolous or facetious. The High Court should, in any event, always have original jurisdiction in Bill of Rights cases and consideration should be given to allowing Bill of Rights points to be taken on appeal even if not taken at first instance.

"Entrenchment"

16. It is accepted by Hong Kong and ourselves (and, of course, it is very important, again for Chinese reasons) that any special quality that the Bill of Rights should have should derive from a legislative equivalent of the Basic Law (ie the Letters Patent) and not from the Bill of Rights itself. Hong Kong has suggested a formula for the Letters Patent (Hong Kong telno 966). That is not satisfactory for two reasons:-

1PFABM

CONFIDENTIAL