TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 15

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"A generous interpretation, avoiding what has been called the 'austerity of tabulated legalism, suitable to give to individuals the fuil measure of fundamental rights and freedoms referred to." (Minister for Home Affairs v. Fisher [1980] AC 319 at 328.

In Attorney General of the Gambia v. Jobe [1984] AIC 689, Lord Diplock said (at 700) :

"A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction."

The same approach has been adopted in Canada with regard to the provisions of the Canadian Charter (cf. R.v. Big M Drug Mart Ltd. [1985] 18 DLR (4th) 321,360.) It is true that the

Ordinance is not entrenched. It can be repealed or amended at any time. But it was enacted against the background of the Joint Declaration on the Question of Hong Kong, signed in 1984, and the Basic Law of the Hong Kong Special Administrative Region, adopted at the Seventh National People's Congress of the People's Republic of China in 1990, both of which contemplate the continuance of the application of provisions of ICCPR after the 30th June 1997. It is not, I think, unreasonable to infer that the legislature had these hopes and

expectations in mind when it adopted the words of the enactment.

In the course of developing his argument that the Ordinance does not apply to litigation or relations between private individuals or legal persons, Mr McCoy referred me to certain passages in a paper presented by Mr. Andrew Byrnes at the recent Hong Kong's Bill of Rights Conference, organised by the Faculty of Law of the University of Hong Kong. The learned author makes reference to the history of the Ordinance and the changes made as a result of opposition to what he describes as "inter-citizen rights" from certain sections of the community during the consultation period. As Scrutton L.J. observed in Tolley v. Fry

& Sons Lid. [1930] 1 KB 467 at 475:-

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