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5. DOMESTIC IMPLEMENTATION
The Draft Bill of Rights partially addresses Amnesty International's concern that the Basic Law did not provide a means for legally enforcing human rights protections, and a remedy for violations. In Part I, Clause 6, the Draft Bill of Rights provides a tort remedy for violations and threatened violations of the Ordinance. Amnesty International's concern is that this remedy is too limited. First, a tort remedy would allow tort defences to weaken the enforceability of the Bill of Rights, including the defences of sovereign immunity (limited by statute), statutory authority, self-defence, necessity, consent, assumption of risk and contributory negligence. Second, the sole availability of a tort remedy, which would include injunctive relief and/or damages, would delay full implementation of the protections of the Bill of Rights in other contexts. Amnesty International recommends that the Bill of Rights be capable of being invoked in any administrative, civil or criminal proceeding.
Amnesty International's concern may be illustrated by an example of circumstances in which a tort remedy would be insufficient: an accused is forced to confess in violation of the Draft Bill of Rights which in Article 3 forbids torture and cruel, inhuman or degrading treatment or punishment. If there is only a tort remedy, there would be no guarantee that the confession will not be used at a criminal trial. The tort remedy would be available in a separate civil proceeding, after most of the harm had been inflicted. In order to make the prohibition against torture and cruel, inhuman or degrading treatment or punishment effective, the prohibition must be capable of being invoked in any criminal, civil or administrative proceeding. Courts would then be able to ensure that confessions or other evidence obtained through torture may never be used in legal proceedings or used to justify the imprisonment of detainees.
Similarly, all of the protections in the Bill of Rights should be available in any administrative, civil or criminal proceeding. Amnesty International also recommends including a clause in the Remedies section of the Bill of Rights stating that the protections of the Covenants shall be implemented not only by tort remedies, but also by legislation and by action of the judicial organs of the HKSAR. It is important explicitly to give the courts of the HKSAR the power to review the compatibility of any legislation with the rights and freedoms guaranteed in the Bill of Rights.
It should also be made clear that the fundamental human rights guaranteed in the Bill of Rights should not be infringed by any executive, legislative or administrative action, and that any person who believes that his/her rights have been violated shall be able to seek redress in a court.
6. HUMAN RIGHTS AND THE FIRST DRAFT BASIC LAW
The first draft of the Basic Law issued in April 1988 did not contain a number of very important international human rights protections that are included in the Covenants. Among those were the protection against torture and other cruel, inhuman or degrading treatment or punishment; the protection of the right to life, including the abolition of the death penalty or at least an assurance that Hong Kong's current policy of not using the death penalty will be continued after 1 July 1997; specific provisions for the protection of the right to a prompt and fair trial; and the establishment of a number of human rights norms which will make it less