Subject: Press Release 24/2/98
Press Release
Bill of Rights at stake under the SAR Government
24 February, 1998
1. The Monitor condemns the Government's attempt to repeal the provisions in the Hong Kong Bill of Rights Ordinance (BORO) introduced by Mr. Lau Chin Shek (Lau's amendments). The SAR Government's insistence that the attempt is "no watering down of any of the prevailing protection under the BORO" is misleading and disingenuous. The proposed repeal of Lau's amendments will weaken the protection of human rights in Hong Kong.
2. The Monitor considers the Government's move an attack on the Bill of Rights in breach of Article 39 of the Basic Law and the Government's international obligation under the ICCPR and other human rights treaties. It calls on the Government to withdraw its Bill and to reaffirm publicly its commitment not to legislate in a manner inconsistent with the International Covenant on Civil and Political Rights (ICCPR).
3. The Government's justification for its move has been to claim that Lau's amendments are capable of three different interpretations; and thereby create uncertainty and confusion (para 11-12 of the Provisional Legislative Council Brief). The Monitor disagrees and stresses that the clear wording of Lau's amendments, the history of their introduction, and the speech moving the amendments make plain the purpose and effect of the amendments, to fully implement the ICCPR in Hong Kong.
4. The UN treaty body responsible for overseeing the implementation of the ICCPR (UN Human Rights Committee) "emphasizes in this regard that under the Covenant a State party does not only have an obligation to protect individuals against violations by Government officials but also by private individuals" and calls for "legislation providing effective protection against violations of Covenant rights by non-governmental actors". The SAR Government's effort to repeal Lau's amendments on the ground that they might provide a legal cause of action against violation of human rights by private individuals constitute an attempt to breach the ICCPR and therefore also inconsistent with Article 39 of the Basic Law which entrenches the ICCPR.
5. The Government's claim that by removing Lau's amendments it seeks to "restore" the Bill of Rights "to its original intention of binding the Government and public authorities" misrepresents reality, and the Government's own stated intention to the LegCo Ad Hoc Group which considered the draft Bill of Rights. The original intention at the time of enactment of the Bill of Rights for Hong Kong was to provide protection modelled after the Canadian Charter of Rights. The scheme of the Bill of Rights Ordinance was (1) to remove all pre-existing legislation inconsistent with the Bill of Rights irrespective of the person invoking it (See S.3, BORO); and (2) in other contexts to provide cause of action and legal remedies to victims whose rights have been violated or threatened by the Government and public authorities but not by private actors (See S.7, BORO).
6. Hence the judgment in Tam Hing Yee v. Wu Tai Wai, that the Bill of Rights Ordinance repealed incompatible legislation only insofar as it is relied upon by the Government or public authorities but not when it is invoked by a private person, is inconsistent with the original legislative intention. The UN Human Rights Committee was critical of this court decision for its failure to give full effect to Hong Kong's obligations under the Covenant. The Court of Appeal itself recognized this was the effect of the decision. Lau's amendments have rightly restored the original intention of the Bill.
7. By attempting to immunise legislation from repeal by Lau's amendments, the SAR Government has demonstrated its lack of commitment to the ICCPR and Article 39 of the Basic Law and its readiness to disregard its international and national obligations when it is convenient.
8. The unsatisfactory judgment preferred by Government will also lead to absurd results. By way of an example, if a law has been found to be inconsistent with the Bill of Rights it could not be relied upon in a public prosecution brought by the police. However, the logic of the Government would seem to be that it would be possible for the law to be relied upon in a private prosecution.
9. The SAR Government's argument that Lau's amendments which was an expansion to Section 3 cannot survive on their own after the other provisions in Section 3 were not adopted as laws of the SAR is not compelling, since they took effect before the non-adoption. Moreover, the Government's argument contradicts its well-publicized view that the non-adoption of some of the sections of the BORO will have no effect on the BORO. The Government considered the non-adopted provisions were just statements of Common Law principles of interpretation. Lau's amendments could therefore be read with the Common Law principles instead of the repealed provisions.
10. The Monitor regards the deletion of Lau's amendments from the Bill of Rights proposed by the Government as a futile act. Removing Lau's amendments will not in itself revive the inconsistent laws already repealed by Lau's amendment , since that repeal already took effect on 30 June 1997.
Nor is the rollback of human rights protections afforded in inter-citizen relations permissible because such a removal is inconsistent with the ICCPR entrenched in Article 39 of the Basic Law. Article 39 provides, "The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law" and such restrictions must not contravene the ICCPR as applied to Hong Kong.
11. The Monitor is disappointed that the SAR Government has chosen to continue to erode the protections provided by the BORO and the ICCPR in Hong Kong, to adhere to the hostile attitude towards private members' bills, to reverse legislation moved by the formerly more representative LegCo, and its readiness to give effect to share the business community's demand to limit protection against human rights violations between private individuals.
12. The SAR Government has the opportunity at this last moment to withdraw its Bill from the Provisional Legislative Council as proof to Hong Kong people and the international community that it does care about human rights. Failing that, the public will have a chance of a chance to see whether the Provisional Legislative Council consider the erosion of human rights protection and the contravention of the ICCPR and Article 39 of the Basic Law its indispensable duty.
HONG KONG HUMAN RIGHTS MONITOR
Room 104, First Floor, Corn Yan Centre, 3 Jupiter Street, North Point, Hong Kong
Phone: (852) 2811-4488
Fax: (852) 2802-6012
Email: HKHRM@HKNET.COM
Home page: MEMBERS.HKNET.COM/~HKHRM
