TNAG-2175-FCO40-3112-Hong-Kong-Bill-of-Rights-1990 — Page 245

CONFIDENTIAL #2

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29.

There are those who consider that interim relief against the Crown which is not available at present is a necessary adjunct to an effective Bill of Rights. A number of groups, including LegCo Ad Hoc Group, have suggested amendment of the Crown Proceedings Ordinance (Cap. 300) to remove the existing Crown immunity. The issue was considered by this Council in 1986 and 1987 in a more general context. The Attorney General was opposed to granting injunctive relief against the Crown for constitutional, public interest, legal and practical reasons and Members decided then against any change. The advice of the FCO is that injunctive relief against the Crown is not essential for providing an effective remedy under the ICCPR.

In any event, the Crown Proceedings Ordinance will have to be localized and may be subject to review in that context. We therefore propose not to include in this Bill any provision that would allow injunctive relief against the Crown. The LegCo Ad Hoc Group agrees with this course of action.

30.

Another issue is whether, as in some Commonwealth countries, BOR issues should be in the exclusive jurisdiction of the Supreme Court. We do not recommend this as our objective is to

is to enable people to obtain BOR remedies in any court. Lower courts in HK are now required to interpret complex issues of law and are capable of doing It would be a major change to the existing legal system to deprive lower courts and tribunals of the ability to determine issues of the kind which are bound to arise when legislation is tested against the BOR or the amended Letters Patent (see paragraphs

below). In any event,

So.

the decisions of lower courts are subject to review in the Supreme Court through the normal appeal process.

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