TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 20

Fashio

ew remedies for contraventions of the Bill of Rights (section 6) may only

sable against the government or public authorities.

But the power to declare

a to be repealed is a power which can be exercised in any proceedings. It is likely cases involving alleged infringements of the Bill of Rights will involve the acts or

of some department of government or public authority. But that does not mean that in which is inconsistent with the Bill of Rights can only be declared repealed if the

ent or a public authority is a party to the litigation. Indeed, it is not difficult to

· possible conflicts between legislation and the Bill of Rights which could only arise

ontext of litigation between private persons. See Articles 10, 19 (3) & (4) and 20.

turn now to the very difficult balancing exercise involved in determining whether the fringement of Article 8(2) can be justified by the restrictions or limitations contained

le 8(3). They read as follows:-

t

d

00

ht

"Article 8:

(2)

Everyone shall be free to leave Hong Kong.

(3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in this Bill of Rights."

ain thrust of Mr McCoy's submission has been to show that the jurisdiction to make

bition orders is necessary to protect the rights and freedoms of others, viz, judgment ors; but he has also contended that it is necessary to protect ordre public. I am satisfied he restriction of the judgment debtor's freedom to leave Hong Kong meets the first irement of Art. 8(3) i.e. it is prescribed by law as that expression has been interpreted his field. Cf. The Sunday Times v. United Kingdom [1979] 2 EHRR 245 at para. 49. g: Constitutional Law of Canada (2nd ed.: 1985) pp. 684-686. There is a somewhat

13

55

as

6]

nd

ve

int

I".

or

ree

ed,

ust

beit

ted

:es.

the

ible