Prisoners Not Entitled to Any Protection under the Bill of Rights
The recent decision of the Court of Appeal in the case of Chim Shing Chung v. The Commissioner of Correctional Services is an illustration of how ill equipped this court is to deal with cases which raise difficult civil and political rights issues. The main issue in the case was not whether the Commissioner had the power to stop prisoners receiving horse racing news -- which was how the case was reported in the media -- but whether the Commissioner had the power under the Prison Rules (subsidiary legislation made by the Governor-in-Council and laid before Legco) and Standing Orders to censor newspapers. The Court of Appeal found that Prison Rule 56, which says Prisoners may receive books or periodicals from outside the prison under such conditions as the Commissioner may determine, gave the Commissioner such a power. They disagreed with Sears J who said that the rule did not contain a power to censor because it was not clear from the wording of the rule that such power was includ ed and he would therefore follow the established legal principle that only clear words can take away rights, including the right of access to the printed word enjoyed by everyone. The Court of Appeal agreed with him however that Standing Orders issued by the Commissioner and which made specific provision for censoring newspapers did not constitute legal authority for censoring newspapers because Standing Orders were only administrative directions and not law.
A curious feature of the case was that the Court of Appeal said it was not assisted in any way by the fact that only a couple of weeks before the Governor-in-Council had amended Prison Rule 56 to include an express power of censorship and that the Explanatory Memorandum to the new rules had said that the amendment was to clarify that Prison Rule 56 did in fact contain a power of censorship. Mr Chim might well have thought that this admission by the law-makers that the existing rule was not clear was strong support for Mr Justice Sears and rather took the wind out of the sails of the government's counsel if he sought to argue that the existence of the power to censor newspapers was as plain as a pikestaff. However the Court of Appeal would have none of this, seeing things clearly where others saw things only darkly.
The Bill of Rights came into the picture because s.9 purports to limit the application of the Bill to prisoners. It says members of and persons serving with the armed forces of the government responsible for the foreign affairs of Hong Kong and persons lawfully detained in penal establishments of whatever character are subject to such restrictions as may from time to time be authorised by the law for the preservation of service and custodial discipline. It was necessary for Mr Chim to argue that the Prison Rules did not deal with censorship and that Standing Orders (which purported to do so) were not "law" in order to escape the application of this restriction. He failed on the first point but succeeded on the latter.
The Court of Appeal did no one a favour by suggesting that because a particular restriction was authorised by law then the Bill of Rights did not apply. Does the judgment mean that if the Governor-in-Council chose to re-introduce corporal punishment into prison for minor disciplinary infractions in the interests of custodial discipline by amending the Prison Rules then the Bill of Rights protections against cruel, inhuman or degrading treatment or punishment under Article 3 fall away? Are our judges bound to defer to an statement that such measures are for discipline and that they should not be poking their noses into prison management matters? It is a pity that the Court of Appeal did not see that inherent in s.9 is a value judgment. Who is to say that a restriction is, as a matter of fact and law, there for the purpose of custodial discipline? If not the courts, then who?
It seems that the Court of Appeal are prepared to contemplate the use of the Bill of Rights to actually cut down on existing civil rights because the suggestion is that once a restriction is authorised by law that is the end of the matter. The judges would have done well to remember that under the provisions of s.2(5) of the Bill of Rights the Bill is not to be used to justify restrictions on existing rights on the basis the Bill of Rights does not recognise such rights or recognises them only to a lesser extent. Simply because a restriction on a prisoners rights is authorised by law within the meaning of the exclusionary provision should not mean that the prisoner is totally at the mercy of that law. If, however, the legal position really is that because of s.9 Bill of Rights the Prison Rules may provide for censorship of any kind so long as certified as being a measure imposed for custodial discipline then legislators should consider very carefully their powers under s.34 Interpretation and General Clauses Ordinance to cause subordinate legislation to be amended aft er it has been laid on the table of Legco. Using this power will help ensure that subordinate legislation meets the minimum standards which they are prepared to countenance having regard to what they think are the appropriate minimum standards. This is important because they know now that the courts will not help if there is a later challenge to the legislation on the ground that it sanctions violations of the Bill of Rights.