TNAG-2177-FCO40-3114-Hong-Kong-Bill-of-Rights-1990 — Page 181

(ii)

attacks

in article 5 to liberty and security of the person can be protected by suing for unlawful imprisonment or assault; the right to protection against unlawful acts on honour and reputation in Article 14 is already covered by the law of defamation. There is therefore no need for BOR litigation in cases of this sort; indeed it would be positively undesirable as it would have the effect of by-passing existing and well established branches of tort law. The court ought to have the power to decide claims of this sort, even though cast in terms of the BOR, on the basis of existing laws and remedies. This would considerably reduce the volume of unnecessary BOR litigation, especially in the private sector, and help to preserve existing tort law intact. New BOR litigation would only be worthwhile pursuing where there are gaps in the existing legal protection.

Since it would reduce the volume of private sector BOR litigation, it would help meet some of the concerns of those opposed to the provision in clause 7 which makes the BOR binding on private persons as well as public.

(iii) The proviso would be particularly useful in relation to

Article 14, where detailed implementing legislation is in preparation. It would have the effect that, once the privacy legislation is enacted, plaintiffs would have to apply for remedies under the specific terms of the legislation rather than the very general (and uncertain) terms of Article 14 itself. This advantage would also apply to any other Article under which more detailed legislation is later enacted.

5.

It is not intended that the proviso should be used in such a way as to turn away a claimant altogether for failure to draft his claim in the correct way; Rules of Court could be made so as to minimise procedural hurdles for meritorious plaintiffs. There can therefore be no question of the proposed proviso reducing in any way the content of the rights protected by the BOR.

6. We consider that the addition to clause 6 of such a proviso would bring very considerable practical advantages, yet should be presentable as a drafting amendment not involving any change of substance or policy to the Blue Bill.

1.

Other issues which need to be raised with HKG:

(i) Ambiguity of Article 22 on discrimination

HKG's interpretation of this Article is that it imposes obligations on the Government only, and that it merely binds them not to enact discriminatory laws. We are not so convinced that it could not be interpreted as prohibiting

GENABQ