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Section
3: Procedural reform and the Basic Law
The Final Report addresses the principles applicable where the rights and freedoms
guaranteed by the Basic Law and the Hong Kong Bill of Rights may intersect with
some of the procedural reforms canvassed. The proposed reforms must be able to
operate in conformity with such rights.
Article 35 of the Basic Law ("BL 35") and Article 10 of the Hong Kong Bill of Rights
("BOR 10") are the main provisions relevant. They focus on the rights of access to the
courts and to a fair and public hearing.
The applicable principles may be summarized as follows :-
(a)
The access and hearing rights are not absolute but may be subject to appropriate
restriction.
(b)
A restriction may be valid provided that :-
(i)
it pursues a legitimate aim;
(ii)
there is a reasonable proportionality between the means employed and the
aim sought to be achieved; and,
(iii)
the restriction is not such as to impair the very essence of the right.
(c)
The access and hearing rights only apply to rules and proceedings which are
decisive of rights and obligations. They do not apply where purely
interlocutory or case management questions arise.
(d)
While the access and hearing rights find expression in concepts such as an
entitlement to and presence at a public hearing, to the public pronouncement of
the court's judgment with reasons, and so forth, legitimate and proportional
procedural limitations on these features of the process have often been accepted
as valid.
(e)
The constitutional acceptability of procedures on appeal is judged in the context
of the proceedings as a whole, with less being required to satisfy the access and
hearing rights on appeal where there has been ample regard for those rights in
the lower court or courts.
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