TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 71

scope and powers of the Parliamentary Commission for Administration should be extended.

More generally, it has been pointed out that if the modern tendency towards the delegation

of government functions to separate agencies continues, the case for introducing additional

checks on administration to protect the individual citizen will be stronger.

The problem of constitutional protection of fundamental rights, as stated by Sir W. Ivor

Jennings, is not merely one of limiting the powers of the administration. Its solution involves

the majority of the legislature as well. "For it is normally the majority of the legislature

which claims to represent most closely the opinions of the majority of the population. It is

therefore usually regarded as desirable not only that the ordinary law shall protect the right

of public speech, the right of association, and the right of public meeting, but also that the

powers of changing the law shall be so restricted that these rights may not be interfered

with. "11

Unfortunately, the Hong Kong legislature is, till now, not a representative legislature, but a

colonial one of which less than one half of its members are elected by the inhabitants of the

colony. It lacks two constitutional features normally associated to a Bill of Rights: that the

Bill should have primacy over other laws, and that the courts should have the power to

interpret it (the Bill) and declare legislation invalid if it violates the Bill of Rights. What will

be changed in 1997 is that the amendment to the Letter Patent, which gives the Bill a superior

status, will cease to have legal effect at midnight on June 30th, 1997.

Professor Raymond Wacks suggested a few entrenchment mechanisms.12

a)

Common Law Courts

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