TNAG-2176-FCO40-3113-Hong-Kong-Bill-of-Rights-1990 — Page 59

"The Court recalls that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see the Airey judgment of 9 October 1979, Series A no. 32, p. 17, para. 32). These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves."

Of course, only the State is accountable to the

international machinery for enforcing the relevant right, but as appears from this case, its obligations, for which it is held accountable, include the requirement to ensure that domestic law is sufficient even if this means imposing obligations under that law on individuals. Where a legislature adopts the Covenant in the way Hong Kong proposes, the lines tend to get a little obscure, but the effect of the Hong Kong BOR Ordinance may well be to make an individual liable in the terms of the Covenant though the normative provision applicable to him is the Ordinance not the Covenant. But there are other ways of giving effect to this obligation to ensure the effectiveness of the Covenant. We defend our own reluctance to "enact" the ECHR (and the Covenant) by saying that we give effect to it by "ordinary" laws.

4. That said, I am by no means at ease over the way in which Hong Kong proposes to legislate. I accept that, having regard to the Chinese dimension and once the political need to legislate manifested itself, the course of re-enacting the Covenant more or less in its own language was probably the least difficult way of dealing with the matter. The courts will, however, have an unusually burdensome task in determining the effect of the Bill of Rights and its effect on "ordinary" law (and that task may well become more complex after 1997 when they have to take into account the specific provisions of Chapter 3 of the Basic Law as well as of the Bill of Rights). The courts in other dependent, and newly independent, countries have been faced with a similar task but with a much more detailed set of fundamental rights to guide them in determining the interaction between Bills of Rights and "ordinary" law. I very much regret that Hong Kong did not see fit to include

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