Sentinels of Liberty or Sheep in Woolf's Clothing? Judicial Politics and the Hong Kong Bill of Rights
| Date | 01 July 1997 |
| Author | Yash Ghai |
| Published date | 01 July 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00093 |
THE
MODERN LAW REVIEW
Volume 60 No 4July 1997
Sentinels of Liberty or Sheep in Woolf’s Clothing?
Judicial Politics and the Hong Kong Bill of Rights
Yash Ghai*
The Hong Kong Bill of Rights occupies a curious place in Hong Kong’s
constitutional history. It was enacted in the dying days of British colonialism. It
quickly became embroiled in bitter controversy between Britain, the outgoing
sovereign, and China, the new sovereign. China accused Britain of violating its
undertaking in the Sino-British Joint Declaration 1984 that the ‘current laws’ in
Hong Kong would remain unchanged, and of going against its assurances to China
that these laws were already fully compatible with international human rights
instruments applying in Hong Kong. That controversy has continued to dog Sino-
British relations, as manifested most recently in the decision of the Standing
Committee of China’s National People’s Congress to water down the Bill of Rights
and to repeal various amendments to certain laws that were passed to bring them
into conformity with the Bill of Rights.
The Bill of Rights became significant not only for this controversy, but also
because in many ways it was a substitute for democracy. It is somewhat ironic that
the legislature that passed the Bill in June 1991 was itself unelected for the most
part. Britain’s belated attempts to introduce democracy were stalled by China.
China had begun to establish committees and advisers to plan for the future
constitutional development of Hong Kong, thereby offering a direct challenge to
the authority of the Governor and the legislature of Hong Kong. It was hard for any
institution to formulate or implement decisively any legal or administrative
policies. In this kind of vacuum, the Bill of Rights, superimposed on the colonial
semi-authoritarian system, and with its own detailed provisions on democracy,
rights, fair administration and accountability, was increasingly invoked to establish
standards and benchmarks for the reform of Hong Kong’s constitutional, legal and
administrative systems.
This article discusses the response of the judiciary to the challenges implicit in
the enforcement of the Bill of Rights. The judiciary was not beset by the dilemma
ßThe Modern Law Review Limited 1997 (MLR 60:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 459
* Department of Law, University of Hong Kong.
I am grateful to my colleagues, Andrew Byrnes and Johannes Chan, for providing me with unpublished
materials which have been of great assistance in the preparation of this paper. I have also benefited from
their insights into and their unrivalled knowledge of the case law on the Bill of Rights, which, as always,
they have generously shared with me. Jill Cottrell and George Edwards kindly provided helpful comments
on a draft of this paper. I wish to acknowledge the support of the Hong Kong Research Grants Council for
my work on the Hong Kong Bill of Rights Ordinance.
that inheres in the enforcement of constitutionally protected rights, that of an
unelected judiciary confronting an elected legislature. On the other hand, the
judiciary undoubtedly felt constrained in giving an expansive interpretation to the
Bill by the circumstances in which the Bill was introduced and the Chinese
opposition to it. Nor was the judiciary experienced in handling constitutional
instruments or comfortable with the notion that there might be norms that protected
the people against the state, for colonial authority had been exercised since the
beginning of British rule without legal restrictions. The Bill was enacted when
Hong Kong was in the travails of the transition to Chinese sovereignty; it could be
instrumental in establishing a new public order and a fair framework for the
conduct of government, or it could be shaped to reinforce existing laws and
practices (some of which smacked of the usual colonial paternalism and
authoritarianism). No doubt many judges felt daunted by the task. In order to
discuss the judicial response, it is necessary first to provide a brief context of the
introduction of the Bill of Rights.
The enactment of the Bill of Rights
The Bill of Rights Ordinance was passed by the Legislative Council of Hong Kong
on 8 June 1991. Its purpose is to give effect in domestic law to the International
Covenant on Civil and Political Rights (‘ICCPR’) as applied to Hong Kong. The
ICCPR (with some reservations) was extended to Hong Kong by Britain in 1976,
but it was not made part of domestic law. At that time Britain’s position, which
was declared to the United Nations Human Rights Committee, was that local
incorporation of the Covenant was unnecessary since the existing common law and
legislation already covered all the rights guaranteed in it. Even in recent years the
Hong Kong Government rejected calls for a Bill of Rights on these grounds. The
case for a Bill seemed to weaken due to the guarantees for rights provided in the
Sino-British Joint Declaration on the transfer of sovereignty which was signed in
1984. It promised a number of specific rights and freedoms, but also provided that
several international instruments as applied to Hong Kong, including the ICCPR,
would continue in force. However, when a draft of the Basic Law of the Hong
Kong Special Administrative Region was published, some commentators
considered that the provisions relating to rights were weak, and needed to be
strengthened by a Bill of Rights that Britain should enact before the transfer.
1
Neither Britain nor the Hong Kong administration was supportive of a Bill of
Rights. Nothing would have been done but for the events of June 1989 in Beijing
with the killing of student protesters in the Tiananmen Square and the subsequent
crackdown on dissent. The pressures to pass the Bill increased, as Hong Kong was
traumatised by the harshness of the measures taken by the Chinese Government. In
a move to reassure the people of Hong Kong and to present an alternative to letting
them come to the UK, as well as to restore investment confidence in the territory,
Britain announced the intention to enact a Bill of Rights. The Chinese opposed the
Bill, arguing that it was unnecessary as current laws (as well as the Basic Law)
1 Jayawickrama, ‘Public Law’ in R. Wacks (ed), TheLaw in Hong Kong, 1969–1989 (Hong Kong: Oxford
UniversityPress,1990); and Dykes, ‘The Hong Kong Bill of Rights 1991: Its Origin, Content and Impact’
in J. Chan and Y. Ghai (eds), The Hong Kong Bill of Rights: A Comparative Perspective (Singapore:
Butterworths, 1993). See also Y. Ghai, Hong Kong’s New Constitutional Order: The Resumption of
Chinese Sovereignty and the Basic Law (Hong Kong: Hong Kong University Press, 1997).
The Modern Law Review [Vol. 60
460 ßThe Modern Law Review Limited 1997
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