Beyond the Basic Law: Interpretive principles protective of fundamental rights in Hong Kong

Abstract

In considering the protection of fundamental rights in Hong Kong, the Basic Law and the Bill of Rights Ordinance (Cap 383) (BORO) tend to be the dual focus. However, common law principles protective of fundamental rights continue to apply. These include principles of statutory interpretation such as the principle of legality (the presumption that general or ambiguous words in legislation are insufficient to interfere with certain common law rights) and the presumption that legislation is to be interpreted consistently with international treaties. This article considers the role of these common law interpretive principles in Hong Kong, and, in particular, the scope for their application in light of the Basic Law and the BORO. It concludes that the protection of fundamental rights in Hong Kong will continue to focus on the Basic Law and the BORO for so long as the current constitutional arrangements persist. However, the courts ought to take care to pay due regard to the relevant common law interpretive principles, including the stringency of the test of necessary implication where a statutory interference with rights is not express, and the potential for the International Covenant on Economic, Social and Cultural Rights to be relevant to statutory interpretation.