A: Introduction
Since the resumption of sovereignty of Hong Kong in 1997, Hong Kong has developed a distinct legal system under the interplay between Basic Law and common law. However, the interaction between Basic Law and Hong Kong Bill of Rights Ordinance (HKBORO) and private law is still immature during the past 20 years.
Private law is a Civil Law concept; it “governs the relationships between individual parties, rather than between individuals and the state”[1]. In common law, contract law, torts law and property law are typically categorized into private law. On the other hand, constitutional law (in Hong Kong they are basic law and HKBORO) is categorized into public law. Normally, private law was governed by its special legal principles, like “serious promises should be enforced (pacta sunt servanda)” in contract law. [2] However, in some circumstances, the private law can also be influenced by the constitutional principles, which is called the horizontal effect of constitutional law.
This essay seeks to discuss the horizontal effect of Basic Law and HKBORO on the private law in Hong Kong in normative and empirical perspectives. Even though, theoretically, the principle in the Basic Law and HKBORO is applicable in private law, the case law in Hong Kong shows that the court in Hong Kong is highly reluctant to activate horizontal effect in Hong Kong. Two tentative explanations to the reluctance will be provided and the final conclusion is that the conservative position of Hong Kong court regarding the horizontal effect needs to be adjusted to promote the development of the legal system in Hong Kong.
B: Horizontal effect
Basic Law and HKBORO are viewed as two constitutional documents in Hong Kong and normally they mainly deal with the dispute between individuals and government or its emanations. Before discussing about Basic Law and HKBORO, it is necessary to talked about the horizontal effect: the effect of constitutional law on private law.
The issue includes a two-level analysis with horizontal applicability as the first level analysis and horizontal effect as the second level analysis. The horizontal applicability “refers to our conception of the underlying right”[3] and horizontal effect “refers to the means through which horizontal applicability is achieved.”[4]
Globally, the horizontal effect has developed into a complex legal principle in other jurisdiction. Under European Law, an individual person from any member state can invoke a European provision before a national or European court; this is called direct effect of European Law.
In United Kingdom (UK), regarding the connotation of horizontal effect, there are fierce academic debates. For example, Ian Leigh provides an extensive six-type model of horizontal effect[5]. T. Raphael provides a concise version of horizontal effect[6].These academic classification can make the problem more complicated, therefore this essay will discuss horizontal effect under two simple perspectives: first is direct horizontal effect which “occurs when an individual pleads a breach of a Convention right in and of itself before the court, obtaining redress against another individual”[7]. This means the right in question is constitutional rights, which cannot be modified by legislature[8].
The second one is indirect horizontal effect which “occurs when the applicant pleads other legal provisions, which are in turn interpreted so as to contain or reflect the Convention right in question”[9]. This right in question is not part of common law right, therefore is subjected to the modification of legislature[10]. In UK, there has been academic support of direct horizontality, but “it has not been accepted by the judiciary. Judicial statements can, however, be found in support of indirect effect.”[11]
C: The normative analysis of the horizontal effect of HKBORO and Basic Law
Unlike that in UK and EU, the constitutional law in Hong Kong has just around 20 years to develop its distinct principles and it is still in the midst of growing up. To the Basic Law and HKBORO, whether they have horizontal effect on private law and, if there are, to what extent the effect is and should be, is still in controversy and, surprisingly, this issue is under highly insufficient academic and professional discussion.
(a), The applicability of HKBORO and Basic Law in private law
Enacted in 1991, after the Tiananmen Square protests of 1989, the HKBORO was a direct response of UK government to restore confidence of Hong Kong people and it had the status as the sole constitutional document in Hong Kong before 1997, when Basic Law came into effect.
One difference between the HKBORO and Basic Law is HKBORO’s unequivocal exclusion of its application in the dispute between private parties, which was expressed in s (7).
| Section 7 Binding effect of Ordinance: (1)This Ordinance binds only— (a)the Government and all public authorities; and (b)any person acting on behalf of the Government or a public authority. (2)In this section— person ( 人 ) includes anybody of persons, corporate or unincorporate. |
Because of the s (7) of HKBORO, it seems that the HKBORO has no horizontal applicability and therefore there is no need to discuss its horizontal effect. But question is not so simple.
First, there are still some articles in HKBORO relevant to private law, for example Article 7:“No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.”
And furthermore, the validity of the s (7) after the 1997 is still not settled down. Under purposive interpretation, the initial motivation of the HKBORO to mitigate Hong Kong people’s antagonism toward the resumption of sovereign of Hong Kong in 1997 because of the Tiananmen Square Protest. It can be inferred that the purpose of HKBORO is to limit the infringement of personal right by public power. Therefore, it should not be expanded into the issues between different individuals.
Case law also supports this position. In the famous case Tam Hing Yee v Wu Tai Wai[12], the court decided that the HKBORO was not applicable in the litigation between individuals. Although this decision was widely criticized and there was even an aborted proposal of amendment to HKBORO, it indicated that “the courts are to develop the common law so as to achieve consistency with the BORO, indicating that the BORO has some form of horizontal effect”[13].
The reality is that rigid adherence of the s (7) of BORO has caused some absurd outcomes. According to the s (7), the fundamental right in HKBORO can only be realized when one party in a dispute is a public authority. When the parties are individuals, the fundamental right is out of the scope of the HKBORO. For example, Hong Kong is a city in which private discrimination based on race is still legal.
By contrast, Basic Law is silent on its horizontal applicability. Academic tends to support the limitation of the scope of the applicability of Basic Law, but the limitation is not absolute. “It has been doubted that they (rights in the Basic Law) can be enforced against private persons or corporations. While constitutional rights in comparable jurisdiction have historically been unenforceable against private actors, a notable exception is that rights in the South Africa Constitution can bind natural or juristic persons.”[14] Theoretically speaking, the silence does mean that it is possible that the Basic Law can be applied to the private law sphere.
Under the spirit of ICCPR, “the state’s obligations are not limited merely to refraining from taking positive acts which infringe individual rights. It must also take positive steps to ensure that individuals actually enjoy those rights and this obligation includes the duty to take appropriate measure to protect them against violation of those rights by private persons”[15]. This statement indicated that the Basic Law should have been applied in the private law.
(b).The extent of horizontal effect of HKBORO and Basic Law
According to Andrew Byrnes, there are two likely impacts of direct inter-citizen rights under the early version of HKBORO: (a), creating new cause of action; (b), modifying the content of substantive legal rules of common law and statute[16]. Both of the two impacts are the horizontal effect of HKBORO. Even thought the final version of HKBORO removes this provision, it does not mean that the HKBORO is only applicable to direct interaction between individual and state, the preferable interpretation of the legislature should be that it may have “direct or indirect impact on legal relations between private individuals. Rather, that impact will be a complex and in some respects unpredictable one”[17]
Theoretically, the Basic Law has the direct horizontal applicability. Liu and Chan argue that as Basic Law is not subjected to direct horizontal effect. The first reason they give is that Basic Law only expressly binds the governments functions, not expressly binds individual regarding the fundamental rights of another individual[18]. However, this reasoning is weakly supported as article 30 states that “No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents”. And even though Basic Law has no expressed provision binding different individuals, it does not explicitly exclude the possibility of direct horizontal effect as HKBORO did.
Another reason they give is that article 81 indicated that Basic Law is not directly actionable as common law has been preserved by Basic Law and is still the main source law Hong Kong Law[19]. But the question is that the Basic Law is superior than common law and is a living law in Hong Kong, therefore, even though common law is the main source of Hong Kong law, Basic Law can been directly applied between different individuals.
On the other hand, article 18 and 84 of Basic Law mandate the court of HKSAR to adjudicate the cases in accordance with Basic Law and the common law applicable. Neither of the two articles makes any distinction between the private law issue and public law issue. Based on the tradition of generous interpretation in Hong Kong legal system, it can be inferred that the principle of basic human rights expressed by Basic Law can be a cause of action for the dispute between private parties.
There are also numbers of articles in Basic Law with private law considerations. For example, in article 30 of Basic Law, it states that “No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents”. This article expressly requires the direct horizontal effect. Article 18 and 42 of Basic Law also provide that the residents in Hong Kong must abide law in Hong Kong, which including common law, rule of equity, ordinances previously applicable in Hong Kong stipulated in article 8 of Basic Law[20]. The duty of Hong Kong residents also gives some sort of horizontal effect of Basic Law.
After 1997, the Hong Kong constitutional law is the interplay and coexistence of HKBORO and Basic Law under the article 39 of Basic Law. With regards to the relationship between Basic law and HKBORO, Liu and Chan commented that HKBORO “cannot be used to interpret the Basic Law, as the BORO postdates the adoption of the Basic Law.”[21]This explanation is misleading as although the Basic Law was adopted one year early than the HKBORO, it did not become valid until the 1997, and therefore it did not bind the application of HKBORO before 1997. The more reasonable explanation is that the Basic Law, as the mini constitution of Hong Kong, is equipped with superior legal status than HKBORO, which is a normal ordinance.
Therefore, regarding whether the s7(1) of HKBORO is compatible with Basic Law, the proper approach should be the “severance” approach applied in the case Leung Kwok Hung v HKSAR[22]. In this case, the court severed the “ordre public” in ss.14(1), 14(5) and 15(2) of Public Order Ordinance (Cap.245) to make the ordinance compatible with the Basic Law. Applying this approach, the s7(1) can also be severed so that the HKBORO can be compatible with the Basic Law and then it would extend the horizontal effect into the dispute between private parties. This approach is compatible with the theory of horizontal effect previously discussed.
Another way is applying the ICCPR, which has been localized by HKBORO, directly in Hong Kong. Actually, the Basic Law does not mention HKBORO at all because the Basic Law was adopted one year before the HKBORO was enacted. HKBORO is the localization of ICCPR as required in Basic Law which said that: “shall be implemented through the laws of the Hong Kong Special Administrative Region” in article 39. Unlike the HKBORO, the ICCPR does not expressly restrict its application scope within the dispute between government and citizens. HKBORO makes some qualification of the applicability of ICCPR in Hong Kong. But as HKBORO is an ordinance which is subjected to the repeal or amendment of legislature, therefore the s(7) is also subjected to repeal in the future.
[1] Hoffman D, The Impact of the UK Human Rights Act on Private Law, Cambridge University Press 2011, 3.
[2] Ibid 4.
[3] Ibid 30.
[4] Hoffman D, The Impact of the UK Human Rights Act on Private Law, Cambridge University Press 2011, 30.
[5] Ian Leigh, ‘Horizontal Rights, the Human Rights Act and Privacy: Lessons from the Commonwealth?’, International and Comparative law Quarterly, 48 (1999), 57, 74-85.
[6] T. Raphael, ‘The Problem of Horizontal Effect’, European Human Rights Law Review (2000), 493, 494-5.
[7] Hoffman D, The Impact of the UK Human Rights Act on Private Law, Cambridge University Press 2011, 35.
[8] Ibid 36.
[9] Ibid 35.
[10] Ibid 36.
[11] Ibid 37.
[12] [1992] 1 HKLR 185
[13] Hin Ting Liu and Joshua Chan, ‘Horizontal effect’ of the Hong Kong Basic Law, Common Law World Review, 2016, Vol. 45(2-3) 101, 103.
[14] Johannes Chan SC (Hon) and C.L.Lin, Law of The Hong Kong Constitution, 2nd Edn, Sweet & Maxwell 2016,538.
[15] Johannes Chan and Yash Ghai, The Hong Kong Bill of Rights: A Comparative Approach, Butterworths Asia, 1993,74.
[16] Ibid 82.
[17] Ibid 91.
[18] Hin Ting Liu and Joshua Chan, ‘Horizontal effect’ of the Hong Kong Basic Law, Common Law World Review, 2016, Vol. 45(2-3) 101, 107.
[19] Hin Ting Liu and Joshua Chan, ‘Horizontal effect’ of the Hong Kong Basic Law, Common Law World Review, 2016, Vol. 45(2-3) 101, 107.
[20] Task Group on Promotional Message of the Basic Law, Introduction to the Basic Law of the Hong Kong Special Administrative Region, 2 edn. Law Press China and Joint Publishing(H.K.) Co.,Ltd.,2000. 257.
[21] Hin Ting Liu and Joshua Chan, ‘Horizontal effect’ of the Hong Kong Basic Law, Common Law World Review, 2016, Vol. 45(2-3) 101, 105.
[22] (2005) 8 HKCFAR 229.