Key Facts --- Hong Kong's Bill of Rights
The Hong Kong Bill of Rights became law on 8 June 1991. Its function is very simple. It enacts, as part of Hong Kong's own law, the basic human rights guarantees contained in the International Covenant on Civil and Political Rights (ICCPR).
The Bill of Rights has been the subject of some misunderstanding and of hostile propaganda from groups opposed to human rights. The aim of this article is to correct some of the mistaken ideas about the Bill of Rights which have been circulating as a result.
Firstly it is not correct that the Bill of Rights gave a whole new series of legal rights to Hong Kong people. All the rights in the Bill of Rights are contained in the ICCPR, which was extended to Hong Kong by the United Kingdom as long ago as 1976. There is therefore no question of the Bill of Rights upsetting the "balance between rights and responsibilities" as some have suggested.
What the Bill of Rights did do was give people the chance to enforce
those rights. Without a law like the Bill of Rights to make the guarantees
in the ICCPR part of Hong Kong's own law, the guarantees were just empty
promises, fine words with no way of making sure that they were put into
The passage of the Bill of Rights has encouraged the Hong Kong Government to remove from the statute book disused and draconian colonial laws which were inconsistent with it. This is a safeguard against such laws being revived and misused. Mr. C. H. Tung and others have claimed that the repeal of these laws has led to social instability. This does not make sense as the laws were disused. The reality is that crime has not been rising in Hong Kong and evidence of social instability is hard to find.
China has stated that parts of the Bill of Rights Ordinance (the law which introduces the Bill of Rights) contravene the Basic Law and it has announced that those parts would be repealed from 1 July.
These are sections 2(3), 3 and 4. Section 2(3) spells out the purpose of the Bill as the domestication of the ICCPR and thus requires our court to take the history, purposes and international jurisprudence of the ICCPR into consideration in interpreting the Bill. Section 3 states that all pre-existing legislation that admits of a construction consistent with this ordinance shall be given such a construction, and that all pre-existing legislation that does not admit of such a construction consistent with the Ordinance is, to the extent of the inconsistency, repealed. Section 4 states that all legislation enacted on or after the commencement date shall, to the extent that it admits of such a construction, be construed so as to be consistent with the ICCPR as applied to Hong Kong.
In fact none of these sections contravene the Basic Law.
Article 39 of the Basic Law states that the provisions of the ICCPR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region; and that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law and such restrictions shall not contravene the provisions of Article 39. Sections 3 and 4 of the Bill of Rights Ordinance therefore help to ensure that the stated aim of Article 39 of the Basic Law the enjoyment by Hong Kong people of the rights and freedoms guaranteed by the ICCPR is fully met.
Various Chinese spokespersons have claimed that the Bill of Rights breaches
the Basic Law because the "automatic repeal" provision in Section 3 gives
it a special quality which places it above other law. This is untrue
and shows a lack of understanding of the normal common law rules of statutory
interpretation. Under these rules, where there is a conflict between
the provisions of any 2 statutes the later statute will take precedence
over the earlier one. This means that if the court can resolve the
apparent conflict in a way which leaves both statutes in existence it will
do so, but where this is not possible the later statute will be held to
have repealed the earlier one. Section 3 of the Bill of Rights Ordinance,
which deals with the relationship between the Bill of Rights Ordinance
and earlier Ordinances, simply sets out expressly this old-established
common law rule. Section 4 deals with the future and reproduces the
common law requirement that statutes should be interpreted as far as possible
in a way consistent with treaty obligations. It does not bind the
future legislature to conform to the provisions of the ICCPR. It
does not even mention the Bill of Rights. It merely states that insofar
as possible, future legislation shall be construed to be consistent with
the ICCPR. From 1 July this would mean to be consistent with Article
39 of the Basic Law, which the courts must uphold in any event.
Of course the real reason why China is repealing parts of the Bill of Rights is because it dislikes the concept of civil and political rights, and does not want the law to restrain it from pursuing whatever policies it chooses in Hong Kong. The confrontation with Britain is but another reason.
However weakening the Bill of Rights alone will not enable China to achieve this. Because the Bill of Rights simply sets out internationally accepted minimum standards, which are also provided for in Article 39 of the Basic Law, the new authorities in Hong Kong will only be able to avoid those standards if they completely abandon the rule of law and ignore the constitutional document passed by China itself for the Hong Kong Special Administrative Region.