TNAG-2553-FCO40-3728-Hong-Kong-Bill-of-Rights-review-of-legislation-1992 — Page 21

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Some aspects of the hearing in Tam Hing-yee

It is disappointing that the Court of Appeal disposed of this important point of principle without the benefit of full argument on the issue from the perspective of debtors (or indeed on the liberty of movement issue). The debtor did not appear either at first instance or on appeal and only the creditor was legally represented at both stages of the case. The Court of Appeal did have the benefit of arguments presented by an amicus curiae. However, the amicus argued that the case did not involve "inter-citizen" relations since it was public officials who ultimately enforced the prohibition order and he did not argue in the alternative that the Bill of Rights Ordinance applied to all legislation. On the liberty of movement issue, the amicus essentially supported the stance of the creditor. It seems rather curious that the Court did not request that arguments directly contrary to those put by the creditor be presented to it. There are certainly strong arguments to the contrary on both the questions at issue in the case and it is unfortunate that the Court rejected a position without having heard arguments directly in support of it.

It is also disappointing that the Attorney General did not intervene and assist the Court on the important questions of principle at issue in the case. The Court indicated its willingness to hear from the Attorney General if he wished to intervene. However, the Attorney General apparently considers it inappropriate for him to intervene in such cases unless there is a formal request from the Court. While there are obviously good reasons for the Attorney General to be cautious about intervening, there is plainly a need for the Attorney General and the Chief Justice to explore whether some satisfactory procedure for intervention in appropriate cases can be developed. The present case is a clear illustration of why it can be undesirable for the Attorney General to stand on the sidelines while important matters of principle are decided largely by default.

Since neither the debtor nor the Attorney General were involved in the case, it appears that no appeal is possible from the judgment of the Court of Appeal in this case. However, it seems inevitable that the issue will arise again in the near future either in the context of prohibition orders or in some other context. As matters stand now, however, the present ruling, if not reversed by the Privy Council in a subsequent case or by legislative amendment, will limit the impact of the Bill of Rights in important ways.

Legislation, "inter-citizen rights" and the Bill of Rights

An "unavoidable interpretation"?

The Court of Appeal characterised as "unavoidable" its conclusion that the operation of section 3 was qualified by section 7 and that legislation affecting the rights of private individuals inter se was not subject to the Bill of Rights (p. 7 of the judgment).

With respect, we would suggest that this conclusion was by no means unavoidable. Even without looking at the drafting history of the Ordinance (something the Court was unwilling to do in accordance with established rules, which may themselves be ripe for legislative reform), it would have been possible for the Court to hold that all legislation was subject to the Bill of Rights (as a result of section 3) and that section 7 subjected the Government and public authorities to the strictures of the Bill of Rights when they were acting pursuant to non-statutory powers derived from the common law (for example, prerogative powers). The phrase in section 7 (1) "This Ordinance binds only" "the Government and all public authorities" might well have been construed as meaning that new causes of action were created by the Bill of Rights only as against the State, but not as against private individuals. This would not necessarily have meant that existing legislation which provided a defence to existing causes of action would be immune from scrutiny (for example, it might not have been possible to invoke legislation permitting employers to discriminate against women as a defence to an action for wrongful dismissal). Had the

Bill of Rights Bulletin

December 1991