The Court of Appeal as a Bulwark of Human Rights: Our Worries
The protection of human rights in Hong Kong requires judges in Hong Kong to interpret and apply the Hong Kong Bill of Rights in a purposive and generous manner in order to realize the purpose of the Hong Kong Bill of Rights Ordinance.
However, the Court of Appeal in Hong Kong has, in a number of cases (e.g. R v Hui Kin Hong, Harry; R v Ming Pao Newspapers Ltd & Ors; and R v Cheung Ka Fai ), demonstrated its inability to present a rigorous and principled analysis of the human rights issues involved in cases before it. Such failure has the effect of diminishing the value of Court of Appeal judgments as precedents and harms the effort of all concerned in building up a solid foundation of local case law of general application in the field of human rights protection. For instance, in Chim Shing Chung v Commissioner for Correctional Services Litton V-P accepted, without investigation and analysis of any kind, the suggestion that restrictions under the Prison Rules applied to prisoners in respect of their subscriptions of newspapers were "authorized by law for the preservation of custodial discipline" and hence Article 16 of the Hong Kong Bill of Rights, which protects the freedom of expression, was excepted from operation. There are also press reports expressing concerns over possible undermining of human rights protection in Hong Kong by judicial incompetence.
It is not difficult to understand the importance of judicial understanding of human rights in the protection of human rights in Hong Kong. The proper approach should be that upon proof of a prima facie breach of human rights guaranteed under the Hong Kong Bill of Rights, the Government or public authority should be required to justify by way of cogent evidence the reasonableness or necessity of the restriction in question. Such justifiable restrictions must be those which have a rational connection with the issue under consideration, which amount to minimal impairment to the human right at risk, which is proportional to the demands of the issue under consideration.
To make matters worse, the Chief Justice of Hong Kong, Sir Ti Liang Yang, and a Justice of Appeal, Mr Justice Liu, were reported to have expressed adverse views on the effect of the Hong Kong Bill of Rights on the Hong Kong legal system. The Monitor considers these views are unfounded both in law and practice. Further, we are concerned about the misunderstanding of basic principles underpinning the Hong Kong legal system and the rule of law as revealed by these statements. The lack of sincerity and commitment in the higher echelons of the Hong Kong Judiciary towards the protection of human rights in Hong Kong is also evident from these statements.
Sections 9 to 13 of the Hong Kong Bill of Rights Ordinance contain exceptions concerning immigration legislation, persons not having the right of abode and elections to the Executive and Legislative Councils. These exceptions are said to reflect the reservations the United Kingdom had entered into for Hong Kong when she extended the International Covenant on Civil and Political Rights (ICCPR) to Hong Kong. In relation to section 9, we consider it unacceptable for Litton V-P in Chim Shing Chung to apply without thinking this exception to bar the application of the Hong Kong Bill of Rights in a case where it is not entirely clear that the measure taken was either authorized by law or for the purpose of custodial discipline. We have serious concern on the quality of judicial interpretation in Hong Kong on the remit of these exceptions, particularly in the absence of any reference to a substantive meaning to the word "law" in addition to its formal meaning. The court shall interpret the word to incorporate the requirements of reasonableness and proportionality. The court should also interpret the exceptions narrowly to give citizens in Hong Kong the largest measure of human rights protection legally possible. Ultimately, the reservations and exceptions should be withdrawn or repealed.
The Court of Appeal's recent judgment in the AECS case, in contrast, is to be welcomed. Not only is there detailed analysis of the human rights issue involved in respect of each of the matters challenged on appeal, the approach taken is principled and serious. We consider it refreshing for the Court of Appeal to criticize the oft-noted characterisation of an entrenched law guaranteeing human rights as an "evil". We hope to hear that more often. Otherwise, it will become less justifiable for people to say that we worried too much.'