The Hong Kong Human Rights Monitor has been asked to comment on the statement issued today by the Chief Justice of Hong Kong about the Hong Kong Bill of Rights.
The Hong Kong Human Rights Monitor does not accept that the concerns expressed by the Chief Justice are valid.
The purpose of the enactment of the Bill of Rights was to strengthen the role of the independent and impartial judiciary so as to provide a safeguard against executive action which might infringe human rights.
The Bill of Rights does not give the " judicial organ" legisla- tive power. Section 3(2) of The Bill of Rights Ordinance states that all pre-existing legislation that does not admit of a con- struction consistent with this ordinance is to the extent of the inconsistency repealed ". The role of the judiciary is to inter- pret whether provisions are inconsistent and therefore whether
they stand repealed. This is no different in principle from interpreting the provisions about repeal of pre-existing legisla- tion which exist in most Ordinances.
Nor is there any practical difficulty about different decisions by Magistrates A and B. This is liable to happen whenever 2 different magistrates have to interpret a point of law in any ordinance, and this has always been the case. It has not previ- ously been suggested that it gives rise to chaos. Any points of sufficient importance to be ruled on by the higher courts become subject to the binding precedent of the higher court decisions. This is the way the common law has always worked, and the Bill of Rights Ordinance is subject to the same principles of judicial decision making.
For most people the Bill of Rights is a source of reassurance, and it is very disturbing that the Chief Justice regards it on the contrary as a cause of concern. Human rights are fundamental- ly important, and that is why they have been given special legal protection.
The model described by the Chief Justice as the " New Zealand model " would be totally ineffective. Hong Kong, unlike New Zealand, does not have full democracy. It has an executive-led government which can veto any legislation. Breaches of the Bill of Rights could not therefore be corrected by legislation if the executive did not want this done. The " New Zealand Model" in Hong Kong would therefore provide no protection for the citizen.
The Hong Kong Bill of Rights in contrast provides real protection in the courts by a quick and simple mechanism, provided that the judges remain genuinely independent.