TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 19

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not a person mentioned in section 7 of the Ordinance. Mr. Chan immediately issues a writ

against the Attorney-General, representing the arresting officer, and seeks judgment on the

grounds of no reasonable defence. The same District Judge grants his request, telling Mr.

Chan that the statutory authority for making the order which lead to his arrest was previously

repealed on the 8th June 1991.

I cannot, and do not, believe that the legislature intended that the Ordinance should

or could produce such a bizarre and irrational result. In my view, judicial review of pre-

existing legislation (section 3) is a separate and distinct power conferred upon the courts, and

intended to be exercised in every case irrespective of the status or identity of the parties.

Section 7 merely indicates that government and public bodies are or may be held liable for

the undoubted uncertainties associated with infringements of the Bill of Rights. In my view,

the terms of section 7, and the use of the word "only", merely serve to emphasise that private

persons are to be spared the uncertain or unforeseeable consequences of being obliged to

comply with the Bill of Rights, especially those dealing with equality and discrimination. For

them the Bill of Rights was feared as a modern Pandora's box, releasing all the worldly evils

and retaining, perhaps, a mere hope of better things. On the other hand, no-one can reasonably complain of the repeal of pre-existing legislation. It may result in new liabilities

because previous defences or limitations are removed. But, this process will, in practice, take

place in a manner which enables citizens to regulate their conduct with reasonable foresight

of the consequences of the changes.

Accordingly, I conclude that section 3 and 7 are to be read and construed as expressing

entirely separate intentions on the part of the legislature. The powers of the courts to grant

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