Topics includes
- Traditional and modern forms of judicial power
- judicial power in Hong Kong Post-1997
- Fundamental rights review & general test in constitutional judicial review
- key cases (HKSAR v Ng Kung Siu) (Chan Kin Sum v Secretary of Justice) (W v Registrar for Marriages) All case...
8. FUNDAMENTAL RIGHTS
1. TRADITIONAL AND MODERN FORMS OF JUDICIAL POWER.
A. Traditional View
v Traditional view: courts cannot review acts of legislature. This operated in HK before the Bill of Rights Ordinance
Ø Prior to this, the courts could only review legislation if there is a procedural abnormality
v Wednesbury unreasonableness – An unreasonable decision is one that is “so outrageous in its defiance of logic or
of accepted moral standards that no sensible person who had applied his mind to the question could have arrived
at it.” Associated Provincial Picture House Ltd v Wednesbury Corporation.
B. Shift to Modern View
Modern approach is to take a more expansive view of judicial role
v This is reflected in BORO, including sections 3 and 4 of BORO and amendment to Letters Patent
v R v Sin Yau Ming (1991): “it needs to be emphasised that the only duty of this, or any other court, considering
legislation is to decide whether that legislation is or is not inconsistent with the Hong Kong Bill. This, or any other
court, does not repeal legislation. That is done by the Hong Kong Bill itself. This, or any other court, does not
redraft legislation or for that matter make suggestions for the form oof future legislation.”
v “In my judgment, the glass through which we view the interpretation of the Hong Kong Bill is a glass provided by
the Covenant. We are no longer guided by the ordinary cannons of constructions of statutes no with the dicta of
the common law inherent in our training. We must look in our interpretation of the Hong Kong Bill, at the aims of
the Covenant and give ‘full recognition and effect’ to the statement which commences that Covenant. From this
stem the entirely new jurisprudential approach to which I have already referred”
2. JUDICIAL POWER IN HONG KONG POST-1997
v Article 160 provides that laws previously in force shall be adopted as laws of the HKSAR upon its establishment,
except for laws which the NPCSC declared to be in contravention of the Basic Law.
v NPCSC decided on 23 February 1997 that Sections 3 and 4 of BORO are incompatible with the Basic law and
invalidated them
Ø Supposed to ensure the supremacy of the BL
Ø Yash Ghai (2007): done without reference to the BL, intended to weaken or downgrade the Bill of Rights.
v Basic Law – a full constitutional text, so expanded grounds and framework for constitutional review.
v Despite changes to BORO, courts have continued to assume power to review and invalidate legislation for
inconsistency with BORO (e.g. William Roy Leung v Secretary for Justice (2006))
v Assumed power to review and invalidate legislation for inconsistency with BL (HKSAR v Ng Kung Siu (1999))
Ø Including legislation of NPC/NPCSC, see Ng Ka Ling v Director of Immigration (1999)
B. Sources of Judicial Power in Hong Kong
39 The provisions of the International Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall
remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.
The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.
Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.
11 In accordance with Article 31 of the Constitution of the People's Republic of China, the systems and policies
practised in the Hong Kong Special Administrative Region, including the social and economic systems, the
system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and
judicial systems, and the relevant policies, shall be based on the provisions of this Law.
No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this Law.
v Power to review for compliance with BORO
v Power to review for compliance with Article 39 and all other provisions of BL
C. Limits on Judicial Power
19(3) The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the
Region, except that the restrictions on their jurisdiction imposed by the legal system and principles
previously in force in Hong Kong shall be maintained.
158 The power of interpretation of this Law shall be vested in the Standing Committee of the National People's
Congress.
The Standing Committee of the National People's Congress shall authorize the courts of the Hong Kong
Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law
which are within the limits of the autonomy of the Region.
Chloe T 30
, The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law
in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the
provisions of this Law concerning affairs which are the responsibility of the Central People's Government,
or concerning the relationship between the Central Authorities and the Region, and if such interpretation
will affect the judgments on the cases, the courts of the Region shall, before making their final judgments
which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee
of the National People's Congress through the Court of Final Appeal of the Region. When the Standing
Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those
provisions, shall follow the interpretation of the Standing Committee. However, judgments previously
rendered shall not be affected.
The Standing Committee of the National People's Congress shall consult its Committee for the Basic Law of
the Hong Kong Special Administrative Region before giving an interpretation of this Law.
Power NOT restricted by strict rules on standing (William Roy Leung v Secretary for Justice (2006))
“…Ultimately, I am persuaded that where academic or hypothetical issues are involved, the question is not really one of
jurisdiction but of discretion…
…The effect of the respondent's submissions is really that the constitutionality of the affected provisions can only be
tested if the applicant were to go ahead with those activities criminalised by the provisions in question and be prosecuted
for them. In other words, access to justice in this case could only be gained by the applicant breaking what is according
to the statutory provisions in question, the law.
…the applicant is hardly a busybody or speculator with an insufficient interest. His life has been seriously affected by the
existence of the legislation in question…the question before us in the present case affects the dignity of a section of
society in a significant way and as such provides a member of that section, the applicant, with a sufficient interest…” –
Ma CJHC at paragraph 28-29
3. FUNDAMENTAL RIGHTS REVIEW
Fundamental rights are a legal entitlement and a moral claim.
A. Types of Rights
v Civil and Political: Rights to Free Speech, Press and Assembly (Article 27); Right to vote (Article 26)
v Economic, social and cultural rights: Right to social welfare (Article 36); Freedom to engage in cultural activities
(Article 34)
v Civil and Political Rights are seen as “negative rights” (i.e., that it can be left alone) whereas Economic, social and
cultural rights are seen as “positive rights” (i.e., it is not free, and it costs money)
Ø These classifications have come under scrutiny as political and civil rights do require money (voting ballots,
stations, payment of workers etc)
Ø A lot of economic, social and cultural rights don’t cost money either
v All rights give rise to negative AND positive obligations to the state.
B. Sources of Rights
Common Law
Although the Hong Kong Letters Patent (the then constitution) didn’t serve a significant role in protecting fundamental
rights for the simple reason that it didn’t contain a bill of rights, many important principles that have had a profound
impact on protecting human rights were therefore judge-made
v Principles of Statutory Interpretation (e.g. presumption that statutes do not operate retroactively, the doctrine
that penal statutes should be strictly construed, the presumption that mens rea is a required element of the
offence, etc.)
v Procedural Due Process (includes the presumption of innocence, right to a fair and speedy trial, doctrine of abuse
of process, right to bail, right against double jeopardy, etc.)
v Institutional Protection (independent and impartial judiciary, the jury system, legal aid system, etc.)
Weaknesses of the Common Law protection:
v Under the doctrine that Parliament is supreme, common law principles may be displaced or reversed by draconian
legislation.
v The emergence of wide statutory discretionary powers: While administrative discretion is required for the smooth
operation of any government, the challenge becomes one of balancing the need for flexibility against the dangers
of unfettered discretion.
International Law
The Hong Kong Bill of Rights replicates the ICCPR with the UK’s reservations into domestic legislation.
According to the convention “transformation theory” ratification of an international treaty is an act of executive
government which has no power to affect the rights of the subjects without an Act of Parliament transforming the
international treaty obligation into local law. As a result, an international treaty has no legal effect in domestic law
until it has been incorporated into domestic law by way of domestic legislation. The full rigour of this theory has been
Chloe T 31
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