Judicial Interpretation of the Bill of Rights
(Extracted from Professor Yash Ghai's thesis Sentinels of Liberty or Sheep in Woolf's Clothing?: The Judicial Politics of the Hong Kong Bill of Rights by the editor. All subheadings are added by the editor.)
The approach that the courts should adopt to the interpretation of the Bill of Rights Ordinance was set by the Court of Appeal in R v. Sin Yau-ming (1991) in September 1991, just months after the enactment of the bill. The Court held that there were two bases for the Bill which required a entirely new approach to its interpretation. The first was its purpose to incorporate the ICCPR in domestic law, necessitating that its words should be interpreted to carry out the staff's international treaty obligations and not inconsistently with them, provided the words of the statute are reasonably capable of bearing such meaning. Silke V. -P. concluded that '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 canons of construction of statutes nor with the dicta of the common law inherent in our training.' As an example, he said that the expression 'according to law' was not satisfied by showing that a domestic law existed, but, following an autonomous meaning, that is incorporated the requirements of reasonableness and proportionality. Similarly because of the international provenance of the Covenant, assistance could be secured from the decisions of common law jurisdictions with an entrenched Bills of Rights (mentioning in particular Canada and the US), the general comments and decisions of the UN Human Rights Committee and the jurisprudence under the European Convention on Human Rights.
The second factor was the domestic status of the Bill, and in particular its entrenchment by the Letters Patent. It was therefore a constitutional document, dealing with rights and freedoms, and therefore had to be approached purposively and generously. From these considerations follows the need for 'an entirely new jurisprudential approach'.
On the more substantive question of how to deal with allegations of an infringement of a right, the Court accepted essentially the Canadian approach under the Charter of Rights and Freedoms (1985). This approach is based on sec. 1 of the Canadian Charter which permits such 'reasonable restrictions' on rights 'as can be demonstrably justified in a free and democratic society'. It requires a two-fold inquiry; first into whether a right has been infringed, and secondly, whether the infringement is justified. An infringement is justified if the legislative objective sought to be attained is a pressing social need (the necessity test) and the means provided are sufficiently connected to the objective (the rationality test), an impair the right as little as possible, and their effects on the limitations of the right are proportional to the objective (the proportionality test). The Court of Appeal said that the onus is on the government to justify the necessity; the evidence 'needs to be cogent and persuasive'. 'The interests of the individual must be balanced against the interests of society generally, but, in the light of the contents of the Covenant and its aim and objectives, with a bias towards the interests of the individual.'
This two-fold approach has been followed in several cases, although it should be pointed out that there is little basis for all aspects of it in the Bill. The Bill does not have a general limitation clause, each right which may be limited has a careful statement of the grounds for and extent of limitation, and some rights are formulated in absolute terms. Secondly there is no reference in the Bill to a 'free and democratic society' (in fact the Basic Law and the present electoral arrangements deliberately preclude full democracy, and the Bill does not require it). Nor does a conclusion of proportionality as formulated by the Canadian courts follow naturally from the scheme of the Bill. The court felt able to adopt the tests since similar conclusions had been reached in the US and under the European Convention in the absence of a formula similar to the Canadian. (The result bears out David Beatty's point that no matter what the formulation for limitations on rights, courts tend to set up the tests of rationality and proportionality.) In general, the decision of the Court of Appeal was welcomed as progressive and as establishing an appropriate, detailed and useful framework for dealing with the questions of interpretation and limitations.
The Turning Point
In Attorney-General v Lee Kwong-kut (1993), the Privy Council, in its first consideration of the Bill, cast doubts on the value of some aspects of this framework and proposed a modification. Lord Woolf, delivering the opinion of the Privy Council, affirmed the constitutional status of the Bill and the need for a generous and purposive approach. He also supported the use of foreign precedents, but cautioned that they may not be always relevant to the conditions of Hong Kong. In particular he criticised the two-stage approach of the Canadian courts as unnecessarily complex and occasionally misleading. He also held that no rights in the Bill were absolute, despite their formulation which allowed no exceptions, on the ground that all provisions of general application 'are always subject to implied limitations' (p. 92), with respect, somewhat careless language in a human rights case, and without a close analysis of the scheme for limitations in the Bill (is the prohibition against torture subject to similar restrictions?).
Lord Woolf urged the Hong Kong courts to abandon the two-stage process. In most cases it would be easy to determine the question of validity of legislation by examining the substance of the statutory provision. 'In a case where there is real difficulty, where the case is close to the borderline, regard can be had to the approach now developed by the Canadian courts in respect of s 1 of their Charter. However, in doing this the tests which have been identified in Canada do not need to be applied rigidly or cumulatively, nor need the results achieved be regarded as conclusive. They should be treated as providing useful general guidance in a case of difficulty. This is particularly true in relation to what was said in Chaulk (a Canadian case) about proportionality since it is the need to balance the interests of the individual and society which are at the heart of the justification of an exception to the general rule'. With respect, it could be argued that the Bill invites at least something analogous to the two-stage process. The scheme of the Bill (except in the case of absolute rights) is to specify a right and then in subsequent sub-section (s) to set out the grounds for limitation, so that if a right is found prima facie to have been restricted, the enquiry must proceed to determine whether the Bill provides authority for the restriction.
Lord Woolf provided general guidance as to how to approach the Bill which are somewhat inconsistent with his earlier endorsement of the principle of purposive and generous approach, and the respect for comparative jurisprudence. It was unnecessary sometimes for the government arguing in favor of the validity of a provision to prove that it related to a sufficiently serious objective; courts should assume it. He cautioned against an activist judiciary by reminding the courts that questions of policy remain 'primarily the responsibility of the legislature' (even thought in this case a colonial and unrepresentative legislature had enacted the provisions). A strict attitude towards 'statutory defenses' (the case being one of reverse onus) would merely encourage the legislature to adopt a different drafting style which 'would not assist individuals who are charged with offences' (is this the same legislature which has responsibility for policy questions ?).
His concluding remarks give a strong indication of the unease of the Privy Council at the way the Hong Kong courts had gone about dealing with the Bill. 'While the Hong Kong judiciary should be zealous in upholding an individual's rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill would become a source of injustice rather than justice and it will be debased in the eyes of the public' .
¡§Authority¡¨on Fertile Ground
These final remarks have become talismanic and are today the most frequently cited 'authority' by government lawyers (and judges) in human rights cases as justification to restrict the scope of rights. They coincided with a significant change in he composition of senior judiciary, increasing Chinese criticism of the Bill, and the emergence of politically sensitive cases on the electoral system and freedom of expression. They appear to have fallen on fertile ground. Whatever the intention of the Privy Council, its judgment constituted a turning point in litigation on the Bill, with negative consequences on both the structure of legal analysis and the predilection to expand the ambit of rights. To some the opinion typifies the undistinguished record of the Privy Council in appeals in human rights cases from other Commonwealth jurisdiction -- lip service to rights, contradicted by a narrow statutory approach, and general deference to the executive and the legislature. The problem is not that there should be a balance, but that Lord Woolf does not offer a method for securing it. Andrew Byrnes comments, "By discouraging the attitude that a Bill of Rights requires a structured and analytical re-examination of established and long-accepted laws and practices to ensure their consistency with contemporary human rights values, the Privy Council undermines the development of a constructive and meaningful role for the judiciary in reviewing legislative choices, while at the same time encouraging both the legislative and executive arms of government to be less attentive of rights considerations, since the prospect of having them overturned is considerably reduced by the judicial attitude of deference."
There is some 'danger' of the Privy Council losing control over judicial developments in Hong Kong if the criteria were as loose as some readings of Lord Woolf might suggest. It is hard to regulate the exercise of common sense through the appellate procedure. Another of its decisions records a further distancing of the Privy Council from Hong Kong's judicial processes (Ming Pao Newspapers v Attorney-General). The Privy Council applied the concept of the 'margin of appreciation' developed by the European Court of Human Rights to the decision of Hong Kong courts. This means that the Privy Council will not intervene in the findings of Hong Kong courts as to the necessity of legislation or in the judgment of the national legislature as to 'what is in the public interest when implementing social and economic policies unless that judgment is manifestly without foundation'. Because the Hong Kong courts have been released from the requirements of a carefully structured analysis of rationality and proportionality, it seems that the assessment of judges, with out necessarily being informed by a careful presentation of evidence, may substitute for an enquiry that seems inherent in human rights litigation. To some extent this is precisely what happened in the Ming Pao Newspapers, when an accumulation of remarks of judges on the evils of corruption and bald assertions by the government were accepted as sufficient evidence of the prevalence of corruption.
Until recently all the courts have accepted the framework of Sin Yau-ming, albeit it as qualified by Lee Kwong-kut (even if in practice the spirit of that decision has not always animated all the judges). However, now for the first time there has been a challenge to the approach outlined in Sin Yau-ming -- by a High Court judge (Waung J) in R v Town Planning Board, ex parte Kwan Kong Co Ltd. The court said, after somewhat formalistic analysis, that the Bill of Rights Ordinance was not constitutional, but ordinary law. As the Bill was based on the ICCPR, which was a compromise among states, courts should exercise restraint in interpreting it, 'which should be construed as providing for no more than is necessarily to the inferred from what the text contains' . Resort to foreign judgments should be eschewed, since 'other domestic and international instruments are the product of very different circumstances and situations' (at 300) and courts should 'decline to be seduced by the complex foreign jurisprudence and the seemingly inexhaustible literature from the European Court of Human Rights'. For all these reasons, interpretations of the Bill should be based on the common law and not be autonomous to the instrument. The supposed authority of Sin Yau-ming was attacked as representing merely the views of one judge (Silke). This frontal attack on the Court Appeal and, implicitly, the Privy Council by, if I can say so without causing offense, the infantry is bold and startling, but already, at the time of writing, Waung J's decision has been endorsed by the Court of Appeal, although it is not possible to say what effect the upholding of the decision has on the question of approach as the judgment has not been published.
The courts reached the watershed of liberalism early -- indeed with the first Court of Appeal decision on Sin Yau-ming. Although the Privy Council in Lee Kwong-kut seemed to endorse it, but as Waung J has shrewdly noted in Kwan Kwong (at 297), the Privy Council was less than enthusiastic and began the recession from that high water mark. Many judges of the High Court and the Court of Appeal have effectively abandoned any systematic analysis of rationality and proportionality or a careful balancing of the values of rights against social and political exigencies. The sociological data are less imperative now than in the earlier stages, being replaced by a kind of "judicial notice", whether of absconding creditors, the cancerous effects of corruption, the prevalence of drug traffiking, etc. The courts are willing to consider cases from foreign jurisdictions, although as some areas get explored, there is less need for them. However, the approach to the use of foreign cases is not very consistent; they are invoked when they support the position preferred by the court, otherwise they are dismissed as irrelevant. There is a tendency to operate within the parameters of the common law and to apologise from common law principles (rather like the English courts in relation to the European Convention).
Even though now there seem to be clear trends towards the emasculation of the Bill, I do not wish to under-rate the positive contributions of the courts. Compared to many other common law jurisdictions, the courts in Hong Kong have made brave and courageous attempts to come to terms with concepts and doctrines of rights, and have not hesitated to castigate executive authorities when violations of rights have occurred. There are some judges of exceptional talent and courage. Criticisms that might rightfully be made of judges need to be tempered with a consideration of the context in which the Bill of Rights is debated currently -- in which the judiciary finds itself in a difficult position. The common law tradition of the role of the judge as applied in Hong Kong (but somewhat abandoned in England) does not encourage the participation of the judiciary in public debates. In their judicial role they may be handicapped by occasional statements by the Chinese authorities that there was no provision in the Basic Law for present judges to continue beyond June 1997 (although this view is generally regarded as inaccurate, and China seemed to resile from it). The former Chief Justice was in particular difficulty, when he was frequently mentioned as a possible candidate for the Chief Executive of the HKSAR.
The Judiciary must have been affected by the limited and uncertain scope of the Bill. On the one hand, it was restricted by the supremacy over it of the Letters Patent and the reservations in the Ordinance, as for example in relation to the prospects of democratisation. On the other hand there is the uncertainty over its future in the new constitutional order ushered in by the Basic Law (without true democracy or accountability) and the exclusion of its full implementation due to specific provisions of the Basic Law. It is almost, as if conceived in the conflict between the outgoing and incoming sovereigns, no one wishes to own to its paternity/maternity. If Britain had the courage of what it claims are its convictions, it would have made the Bill supreme not only over the Letters Patent but also general British competence over Hong Kong rather than leave the world with the impression that only the PRC needs to be controlled by a legal regime of rights.
Another contradiction about the Bill is that the UK and the present Hong Kong governments want, on the one hand, to convince the world community (principally through the UN monitoring bodies) that the Bill is alive, well and significant and to convince the Chinese authorities (principally through the Joint Liaison Group) that the Bill has not really effected the colonial system of administration or its apparatus for law and order. Perhaps the judges, personally and professionally, are caught in similar dilemmas. Although there is no reason to believe that Lord Woolf was so influenced, his caution towards realism could easily be seen as accommodation to the new sovereign. If I have been critical of the judiciary, it is because we in the common law system have been taught to venerate the judiciary so highly that, in the present Gramscian chaos when the old order refuses to die and the new one is yet unborn, we expect the judges to have the integrity to uphold the principles that we want to live by.
Professor Yash Ghai