Stressing the public interest in human rights cases

In 1993, Lord Woolf, in a key judgment in the Privy Council, at that time still Hong Kong's highest court of appeal, saw the danger of the “tail wagging the dog”. In the case of Attorney-General v Lee Kwong-kut, the essence of what he said was that, while the Hong Kong judiciary should be zealous in upholding an individual's rights, it was also necessary that disputes as to the effect of the Bill of Rights Ordinance not be allowed to get out of hand. He added that, in order to maintain the balance between the rights of the individual and the public interest, rigid and inflexible standards should not be imposed on attempts to resolve the difficult and intransigent problems with which society is faced when dealing with serious crimes. He also stressed the importance of local context and cautioned against using the complex proportionality test borrowed from Canada — which so strongly emphasizes individual rights — in most cases.

Lord Woolf's verdict was strongly criticized for excessively favoring the need for government to maintain order over the claims of individuals to have their rights protected. Those arguments, which stressed the need for superior judicial power, carried the day at that time. This insistent individual rights viewpoint, which is now widely treated as primary doctrine, posits, according to one leading Basic Law text, that fundamental human rights, rather than the overall public interest, must enjoy paramount recognition when rights cases are argued in court.

One key reason Hong Kong's High Court struck down the mask ban law in November was that it disproportionately restricted fundamental human rights (the court also argued that the legislature had made an invalid delegation to the executive government).

But how does Hong Kong's essential public interest in restoring order and stability and rebuilding the rule of law, from the lawless disarray we have faced in 2019, figure in this proportionality calculation? In fact, this mode of argument fundamentally reduces the weight given to the broad public interest. The proportionality test typically places a heavy onus on the government to justify each single claimed infringement of a particular right, significantly separated from any special, public interest context which may apply.
Lord Woolf's “balancing test” would, however, have made the public interest in re-securing the right to freedom from fear for millions of Hong Kong residents a primary consideration. It follows from this that anyone arguing to overthrow the mask ban law on constitutional grounds would need to show that the public interest was not being weakened in any measurable way, within the context of months of unfolding lawlessness, by any such over-ruling of that law. This could mean presenting evidence that such laws cannot work, over time, to improve stability and order. The widespread use of anti-mask laws today across the developed world, including in Canada, France, Germany and Sweden, would increase the difficulty of making such an argument.

The same leading text relied on above explains that the Basic Law is “a living instrument that evolves and responds to social changes and that a literal, technical, narrow or rigid approach to its construction is to be avoided”. This analysis opens the door for the Court of Final Appeal (CFA) to adopt a purposive review of the law as it stands, in the light of current circumstances.

We have witnessed an unprecedented level of grim social change this year in Hong Kong, which demands a range of responses. The CFA could, today, play a key role in rebuilding the core of Hong Kong's damaged rule of law stability by revisiting and embracing the essence of Lord Woolf's prescient 1993 judgment. The balancing test stressed in that judgment could be specified by the CFA as the usual, first order test to apply in human rights case.

As it happens, there is an alternative way to recalibrate the basic, individual-societal, rights-equation in the HKSAR. The CFA confirmed in Lau Kong-yung's right-of-abode case in 1999 that, under the Basic Law, the National People's Congress Standing Committee enjoys a plenary power to issue interpretations of the Basic Law on its own initiative, which are binding in the HKSAR. One other way in which the balancing test could be made the primary starting point for human rights cases in Hong Kong would be for the NPCSC to provide an interpretation under Article 158 of the Basic Law, (bearing Lord Woolf's judgment in mind) principally stating that rights interpretations under that law should, in the light of the immense social disruption in 2019, normally adopt a balancing test, making the public interest a core matter for consideration.

Events in 2019 have confirmed that Lord Woolf was essentially right, 25 years ago. His critics were too sudden with their adverse response.

The author is a visiting professor in the Faculty of Law, the University of Hong Kong.

The views do not necessarily reflect those of China Daily.