TNAG-2175-FCO40-3112-Hong-Kong-Bill-of-Rights-1990 — Page 136

8

certificate

This clause (with or without the Attorney General's under Clause 4) will achieve neither legal supremacy nor entrenchment. While the Attorney General may choose to rely on the interpretation clause to help him decide whether, in his opinion, a proposed Ordinance is or is not consistent with the Bill of Rights, judges are at liberty to give an interpretation of the Bill of Rights, or of the later legislation, which differs from that of the Attorney General. The Bill of Rights is drawn in wide terms and it may be difficult to predict how a court

will view a new piece of legislation or the Bill itself in an actual case.

Moreover the interpretation clause proposed would be of no avail in the face of express repeal or amendment or an unambiguous subsequent law which was held by the courts to be inconsistent with the Bill of Rights. It will, however, ensure that where a provision is capable of an interpretation consistent with the Bill of Rights, it will be so interpretated.

9

Clause

In addition to

construed.

It

Clause 3A, it is proposed that a similar provision be added in respect of existing legislation (see

3 (1) at Annex B).

would require the courts to construe all such legislation consistently with the Bill of Rights, unless the legislation was not capable of being so In these other cases it would be repealed to the extent of the inconsistency.

The courts would therefore be encouraged to give a restrictive interpretation to an existing enactment, whenever this is possible, to make it consistent with the Bill of Rights, rather than deciding it is repealed by

impliedly the Bill of Rights. We recommend that this clause should not operate on existing legislation during the proposed freeze period. To allow such interpretation during this period may well defeat the object underlying the proposal

freeze.

for

a

The draft Bill will be amended accordingly to make this

clear.

10

proposes, as a

Option (i) in paragrapg 4 (a) above matter of practice, the inclusion of a clause in every future Bill making it subject to the Bill of Rights. For so long as

the

no

There

government of the day retained the practice, there could be derogation from the Bill of Rights and the Attorney General's certificate would, as a matter of course, be that in his opinion no inconsistency with the Bill of Rights was involved. would, however,

be no legal requirement to continue the practice, since any such requirement would be a manner and form provision. However it would give rise to a tradition that a future government may find it politically difficult to It would also reinforce the interpretation

discontinue. provision should be bill.

in Clause 3A.

It is therefore recommended that it the practice to include such a clause in every future

4.