1 HONG KONG LEGISLATIVE COUNCIL -- 5 June 1991 HONG KONG LEGISLATIVE COUNCIL -- 5 June 1991 1
OFFICIAL REPORT OF PROCEEDINGS
Wednesday, 5 June 1991
The Council met at half-past Two o'clock
PRESENT
HIS EXCELLENCY THE GOVERNOR (PRESIDENT)
SIR DAVID CLIVE WILSON, G.C.M.G.
THE CHIEF SECRETARY
THE HONOURABLE SIR DAVID ROBERT FORD, K.B.E., L.V.O., J.P.
THE FINANCIAL SECRETARY
THE HONOURABLE SIR PIERS JACOBS, K.B.E., J.P.
THE ATTORNEY GENERAL
THE HONOURABLE JEREMY FELL MATHEWS, C.M.G., J.P. THE HONOURABLE STEPHEN CHEONG KAM-CHUEN, C.B.E., J.P. THE HONOURABLE MRS SELINA CHOW LIANG SHUK-YEE, O.B.E., J.P. THE HONOURABLE MARIA TAM WAI-CHU, C.B.E., J.P. DR THE HONOURABLE HENRIETTA IP MAN-HING, O.B.E., J.P.
THE HONOURABLE CHAN YING-LUN, O.B.E., J.P.
THE HONOURABLE MRS RITA FAN HSU LAI-TAI, O.B.E., J.P. THE HONOURABLE PETER POON WING-CHEUNG, O.B.E., J.P. THE HONOURABLE CHENG HON-KWAN, O.B.E., J.P.
THE HONOURABLE CHUNG PUI-LAM, J.P.
THE HONOURABLE HUI YIN-FAT, O.B.E., J.P.
THE HONOURABLE MARTIN LEE CHU-MING, Q.C., J.P. THE HONOURABLE DAVID LI KWOK-PO, O.B.E., J.P. THE HONOURABLE NGAI SHIU-KIT, O.B.E., J.P.
THE HONOURABLE PANG CHUN-HOI, M.B.E.
THE HONOURABLE POON CHI-FAI, J.P.
PROF. THE HONOURABLE POON CHUNG-KWONG, J.P.
THE HONOURABLE SZETO WAH
THE HONOURABLE TAI CHIN-WAH, J.P.
THE HONOURABLE MRS ROSANNA TAM WONG YICK-MING, O.B.E., J.P. THE HONOURABLE TAM YIU-CHUNG
DR THE HONOURABLE DANIEL TSE, C.B.E., J.P.
THE HONOURABLE ANDREW WONG WANG-FAT, J.P.
THE HONOURABLE GRAHAM BARNES, C.B.E., J.P.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS
THE HONOURABLE MICHAEL LEUNG MAN-KIN, J.P.
SECRETARY FOR TRANSPORT
THE HONOURABLE EDWARD HO SING-TIN, J.P.
THE HONOURABLE RONALD JOSEPH ARCULLI, J.P.
THE HONOURABLE MARTIN GILBERT BARROW, O.B.E. THE HONOURABLE PAUL CHENG MING-FUN
THE HONOURABLE MICHAEL CHENG TAK-KIN, J.P.
THE HONOURABLE DAVID CHEUNG CHI-KONG, J.P.
THE HONOURABLE RONALD CHOW MEI-TAK
THE HONOURABLE MRS NELLIE FONG WONG KUT-MAN, J.P. THE HONOURABLE MRS PEGGY LAM, M.B.E., J.P.
THE HONOURABLE DANIEL LAM WAI-KEUNG, J.P.
THE HONOURABLE MRS MIRIAM LAU KIN-YEE
THE HONOURABLE LAU WAH-SUM, O.B.E., J.P.
DR THE HONOURABLE LEONG CHE-HUNG
THE HONOURABLE LEUNG WAI-TUNG, J.P.
THE HONOURABLE JAMES DAVID McGREGOR, O.B.E., I.S.O., J.P. THE HONOURABLE KINGSLEY SIT HO-YIN
THE HONOURABLE MRS SO CHAU YIM-PING, J.P.
THE HONOURABLE MRS ELSIE TU, C.B.E.
THE HONOURABLE PETER WONG HONG-YUEN, J.P.
THE HONOURABLE PETER TSAO KWANG-YUNG, C.B.E., C.P.M., J.P. SECRETARY FOR HOME AFFAIRS
THE HONOURABLE MRS ELIZABETH WONG CHIEN CHI-LIEN, I.S.O., J.P. SECRETARY FOR HEALTH AND WELFARE
THE HONOURABLE CHRISTINE CHOW KWAN-TAI, J.P.
SECRETARY FOR EDUCATION AND MANPOWER
THE HONOURABLE IAN ROBERT STRACHAN, J.P.
SECRETARY FOR SECURITY
THE HONOURABLE MRS ELIZABETH MARGARET BOSHER, J.P. SECRETARY FOR ECONOMIC SERVICES
ABSENT
THE HONOURABLE ALLEN LEE PENG-FEI, C.B.E., J.P. THE HONOURABLE CHEUNG YAN-LUNG, C.B.E., J.P.
THE HONOURABLE HO SAI-CHU, O.B.E., J.P.
THE HONOURABLE LAU WONG-FAT, O.B.E., J.P.
THE HONOURABLE JAMES TIEN PEI-CHUN, J.P.
IN ATTENDANCE
THE CLERK TO THE LEGISLATIVE COUNCIL
MR LAW KAM-SANG
Papers
The following papers were laid on the table pursuant to Standing Order 14(2): Subject
Subsidiary Legislation L.N. No.
Building (Administration) (Amendment) (No. 2) Regulations 1991...................................................... 209/91
Building (Oil Storage Installations) (Amendment) Regulations 1991................................. 210/91
Road Traffic (Public Service Vehicles) (Amendment) (No. 2) Regulations 1991...................... 211/91
Military Installations Closed Areas (Amendment) Order 1991......................................... 212/91
Public Order Curfew (Variation)
(No. 2) Order 1991.................................................. 213/91
Sha Tin-Meisha Ferry Terminal Boundaries (Repeal) Order 1991................................................. 214/91
Sha Tin-Meisha Ferry Terminal Restricted Area Boundaries (Repeal) Notice 1991............................... 215/91
Electoral Provisions (Amendment) Ordinance 1991 (Commencement)
Notice 1991........................... 216/91
Hotel and Guesthouse Accommodation Ordinance 1991 (Commencement) Notice 1991........................... 217/91
Public Health and Municipal Services (Public Pleasure Grounds) (Amendment of Fourth
Schedule) (No. 3) Order 1991
Corrigendum........................................................... 218/91
Sessional Papers 1990-91
No. 73 -- Report of the Police Complaints Committee 1990
No. 74 -- Report of changes to the approved estimates of expenditure approved during the third quarter of 1990-91 Public Finance Ordinance : Section 8 No. 75 -- Secretary for Home Affairs Incorporated Statement of Accounts for the year ended 31 March 90
Miscellaneous
The first review of progress on the 1989 White Paper on Pollution
Addresses by Members
Report of changes to the approved estimates of expenditure approved during the third quarter of 1990-91
Public Finance Ordinance: Section 8
FINANCIAL SECRETARY: Sir, in accordance with section 8(8)(b) of the Public Finance Ordinance, I now table for Members' information a summary of all changes made to the approved estimates of expenditure for the third quarter of the financial year 1990-91.
Supplementary provision of $875.1 million was approved. It was fully offset
either by savings under the same or other heads of expenditure or by the deletion of funds under the Additional Commitments subheads. This included $448.4 million for the five University and Polytechnic Grants Committee-funded institutions to award salary increases or allowances to their academic and non-academic staff, $109.7
million for the Hong Kong University of Science and Technology to purchase general teaching equipment, and $86.1 million for the Hospital Authority to establish its Headquarters and to meet the costs for up-front systems and consultancies.
Approved non-recurrent commitments were increased by $73.7 million during the period, and new non-recurrent commitments of $224.4 million were also approved.
In the same period, a net increase of 703 posts was approved.
Items in the summary have been approved either by Finance Committee or under delegated authority. The latter has been reported to the Finance Committee in accordance with section 8(8)(a) of the Public Finance Ordinance.
The first review of progress on the 1989 White Paper on Pollution
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Sir, today is World Environment Day. Two years ago today the White Paper on Pollution was published. We said at that time that a review of progress would be published after two years, and I commend to you the First Review which is tabled today. Members are already acquainted with the review, so I will be brief.
As with the review itself, most of the very tight deadlines we imposed upon ourselves, we met. As a result, over the past two years we have produced some encouraging results:
-- we have substantially reduced air pollution;
-- we have made good progress on implementing a new waste disposal strategy; -- we have reduced noise disturbance generally; and
-- we have achieved our targets so far in water pollution and sewerage.
Sir, there can be few other White Paper that have been subject to such rigorous implementation and monitoring, and I believe Hong Kong can be proud of what we have achieved so far.
We have created a fair amount of momentum in these first two years. We now have to maintain this momentum. To meet our future objectives we will have to adapt to changing circumstances, and tailor our suit to fit the cloth. But in the same way that Hong Kong has met the challenges of the first two years, I believe that we will continue to find ways of achieving our objectives, and that, with Members' support, the record of the next two years will show that we have continued to move forward in the battle to save our environment with renewed determination and vigour.
I do not think that the people of Hong Kong will let us do otherwise. Indeed, I sincerely hope that they will not.
Report of the Police Complaints Committee 1990
DR TSE: Sir, on behalf of the Police Complaints Committee, may I table the Committee's Annual Report for 1990.
The Committee is an independent body appointed by you, Sir, to monitor and review the investigation of complaints by the public against the police. This is the fifth Report compiled by the Committee since its establishment in 1986.
During the year under review, the Committee has reviewed and endorsed a total of 3 620 complaint cases, embracing 5 159 allegations. With the support of an independent Secretariat, the Committee has been able to vet in detail each and every complaint case. Arising from these complaints, various forms of legal, disciplinary and internal actions have been taken and advice given against 537 police officers. In addition, the Committee has proposed a number of reviews of, and changes to, police practices, procedures and instructions. It is hoped that the Commissioner of Police has found the Committee's proposals helpful in identifying and rectifying areas which lead or might lead to complaints.
I reported last year in this Council that the declining trend in the number of complaints since April 1987 has somewhat stabilized. In 1990, a total of 3 437 complaints were received by the Complaints Against the Police Office of the Royal
Hong Kong Police Force, an increase of 216 cases or 6.7% over the number registered in 1989. Nevertheless, the 1990 figure still represents an 11.2 % decrease over the figure for 1987.
The 3 437 complaints received in 1990 should be viewed in the context of at least 2.69 million potential police-public confrontation situations in the year. These included 1.18 million persons stopped and checked through the Police Operational Nominal Index Computer System (PONICS), and 1.51 million traffic summonses and
tickets issued by the police. The difficult nature of the front-line duties of police work to protect the community should also be borne in mind.
Sir, of particular concern to the Committee was that the increase in the number of allegations of police assault continued into 1990. During the year, a total of 1 659 reports were made, representing a 26.4 % and 49.5 % increase over 1989 and 1988 respectively. It is, however, worth noting that a significant number of the
allegations of assault were later withdrawn or not pursued by the complainants. In 1990, 78.2% of these allegations were classified as withdrawn or not pursuable and endorsed as such by the Committee.
The Committee has studied the trend relating to allegations of assault over the past few years with the assistance of the Complaints Against the Police Office. There appears to be some correlation between the increase in assault allegations and the increase in reported crime with consequential crime arrests. The Complaints Against the Police Office has brought the matter to the attention of Formation Commanders of Police Districts to seek their assistance to reverse the escalating trend. The Committee will monitor the situation very closely.
Finally, the Committee would like to pledge its continued determination to safeguard the integrity of investigation into complaints against the police, and to exert its utmost to be worthy of the trust that you, Sir, have placed in the Committee.
With your permission, Sir, I would like to take this opportunity to thank the government departments concerned, in particular the Commissioner of Police and all officers in his Complaints and Internal Investigations Branch for their co-operation and assistance rendered to the Committee and its Secretariat. I would also like to record my appreciation of the contribution and support by Members of this Council. Oral answers to questions
Medical examination of public vehicle drivers
1. MR CHUNG asked (in Cantonese): It has been reported that in the verdict returned by the jury of the coroner's court recently in relation to a fatal traffic accident caused by the sudden illness of a bus driver whilst on duty, it has been recommended that the Government should introduce legislative control to require drivers of public vehicles to undergo annual medical examination when they reach a prescribed age. Will Government inform this Council whether legislative measures will be introduced in response to the recommendation of the coroner's court so as to minimize the
occurrence of similar incidents?
SECRETARY FOR TRANSPORT: Sir, last December, in response to a question on a similar topic, we considered whether there was a need to require public transport companies to produce medical certificates for employees above a certain age, certifying their fitness to drive. Having regard to the road accident records of drivers employed by public transport companies, their age profile, and the management controls already exercised by these companies in terms of retirement age and medical checks, we
concluded at that time that it was not necessary to recommend the introduction of legal medical checks.
Nevertheless, as part of our regular review of road safety measures, a review of practices elsewhere is now being conducted, with particular regard to requirements for drivers of public service vehicles and heavy goods vehicles to undergo medical checks. The recent recommendations of the coroner's court will be considered in the context of this review.
MR CHUNG: Sir, will the Secretary for Transport inform this Council when the review of practices elsewhere will be completed and the results thereof made known to the public?
SECRETARY FOR TRANSPORT: Sir, the Transport Department expects to finish the review by the last quarter of this year. We will then seek the advice of the Road Safety Council and thereafter the Transport Advisory Committee, and depending on the advice, we will make the results known to the public.
Television game-contest programmes
2. MR DAVID CHEUNG asked (in Cantonese): Will the Administration inform this Council of its policy on TV game-contest programmes which has recently shown an increasing tendency to advocate chance-taking and sheer luck, and advise whether there is any plan by Government to control and limit the broadcast of such programmes in view of the undersirable effect that it may cause to our youngsters?
SECRETARY FOR HOME AFFAIRS: Sir, if the implications of Mr CHEUNG's question are that the television games shows referred to by him amount to some form of minor gambling, I would like to assure him that under the Gambling Ordinance such shows are incapable of this interpretation.
However, the television stations are required to adhere to the Code of Practice for Programme Standards issued by the Broadcasting Authority. This Code states, and I quote:
"Any contest included in a programme must offer an opportunity for all contestants to win on the basis of skill or knowledge and not purely by chance."
Monitoring of the output of the two television stations confirms that the television stations are following the legislation and Code of Practice.
The Government, Sir, is of course concerned about anything that might have an undesirable effect on our young people, but it is our belief that under the present regulatory environment television games shows and contests would not represent a threat to the development of our youngsters.
MR DAVID CHEUNG (in Cantonese): Sir, the Secretary has not answered the second part of my question. Would the Administration inform this Council whether, of the total air time of our TV stations, a suitable limit on the quantity of this type of programmes will be imposed?
SECRETARY FOR HOME AFFAIRS: Sir, the total quantum of this type of show accounts for
about 1% to 1.5% of total air time on both stations. So I do not think the quantity is either excessive or uncontrolled.
Non-Commonwealth doctors
3. MR BARROW asked: Will the Government inform this Council what progress has been made on the proposal that non-Commonwealth doctors should be allowed to practise in Hong Kong to serve certain special groups, such as Vietnamese in detention centres and students of the Japanese School?
SECRETARY FOR HEALTH AND WELFARE: Sir, I am pleased to inform that the Medical Council of Hong Kong has agreed to my suggestion to amend the Medical Registration Ordinance by adding to it a provision for limited registration. This would allow doctors, not otherwise registrable in Hong Kong, to practise amongst special groups under
conditions to be specified by the Medical Council.
It is my intention, Sir, to introduce a Bill to this effect early in the next legislative session and I look forward to this Council's support.
MR BARROW: Sir, this is welcome news and I am grateful to the Secretary and the Medical Council for their perseverance. I am sure that this decision will support the efforts to promote and strengthen Hong Kong as an international city. Could the Secretary clarify the type of conditions which she envisages will be specified by the Medical Council? Will she be able to ensure that the conditions are sufficiently flexible?
SECRETARY FOR HEALTH AND WELFARE: Thank you, Sir. As limited registration is different from exemption or full registration under the law, I envisage first of all that the law, when amended, will be sufficiently flexible so as not to fetter the discretion of the Medical Council; secondly, that the conditions to be specified by the Medical Council will serve the particular needs of a special group and will be so circumscribed for that purpose; and thirdly, that in drawing up the criteria for limited registration there is need for transparency so as to conform to the principles of the General Agreement on Trade and Services and this has already been brought to the attention of the Medical Council.
MR McGREGOR: Sir, given the present very unsatisfactory situation with the medical services in the camps, and the fact that missionary doctors are able and willing to come here at relatively short notice, is it not possible for Government to introduce amendment to legislation now with the intention of having it passed into law before the end of this Session?
SECRETARY FOR HEALTH AND WELFARE: We have, over the last three years, explored various options, and the amendment to the Medical Registration Ordinance is the most appropriate vehicle to effect an amendment.
DR LEONG: Sir, can the Secretary confirm that the suggested amendment mentioned in the reply is not the result of political pressure, for example, from the UNHCR, and that the standard of medical services in Hong Kong will not be thus affected?
SECRETARY FOR HEALTH AND WELFARE: I can so confirm, Sir. I am not under any pressure other than my own in terms of providing a service to the community of Hong Kong.
As regards the second part of Dr LEONG's question on standards, I would say that the maintenance of professional standards is the responsibility of the Medical Council. The intention is that the Medical Council will grant limited registration only to unregistrable doctors whose qualifications, training, experience and special skills are considered suitable for the group being served. Standards will not be compromised and the question of lowering standards does not arise.
MR McGREGOR: Sir, with respect, I do not think the Secretary has answered my question. I was asking about the timing for this legislation. If this matter has been examined in detail before, there should not be great difficulty in putting forward amendment to the legislation during this Session. Would the Secretary not agree with me on that?
SECRETARY FOR HEALTH AND WELFARE: No, Sir, I do not agree with Mr McGREGOR.
Written answers to questions
Return of stolen cars from China
4. MR DAVID CHEUNG asked: Knowing that the five stolen cars had been returned from China without any strings attached, will Government inform this Council whether the same would apply in future?
SECRETARY FOR SECURITY: Sir, the answer is "Yes". The Government will continue to co-operate with the Chinese authorities for the unconditional return of the cars stolen from Hong Kong and subsequently identified as such in China.
Student guidance service
5. MRS LAM asked: In view of the several suicide cases committed by school children under mental stress this year, will Government inform this Council whether consideration will be given to increasing the allocation for the student guidance service so that a student guidance officer can be employed in each school to assist and look after those students in need of help to prevent the recurrence of similar tragic incidents?
SECRETARY FOR EDUCATION AND MANPOWER: Sir, the Government is presently considering recommendations made by the Education Commission in its Report No. 4 (ECR4) to upgrade guidance services in schools, some of which include improvements to the manning ratio for Student Guidance Officers (SGO) in primary schools. The present provision is one SGO to 3 000 pupils in the urban area and one SGO to 2 000 pupils in rural areas. This allows one SGO to serve an average of four school sessions.
ECR4 recommends that the present mode of provision, that is, Education Department-based SGOs serving up to four schools each, be changed to a "whole school approach", whereby all teachers in a school actively participate in assisting students resolve their developmental problems. Most SGO posts in Education Department should be transferred gradually to schools as additional posts to enable school heads to choose one of their teachers as a Student Guidance Teachers (SGT).
One SGT should be shared by two or more schools under the same sponsoring body. The manning ratio of 1:2 500 should be adopted as an initial step in 1992, and a review be carried out in 1994 to consider whether the improved manning ratio of 1:1 350 should be adopted, the ultimate aim being to have one SGT/SGO for each standard-sized primary school, that is, 24-classroom or 30-classroom primary school.
The Administration is at present assessing feedback from the ECR4 public consultation exercise and will shortly be going to the Executive Council for advice as to whether the Education Commission's recommendations should be accepted.
In the meantime, the Education Department is developing preventative measures to minimize the possibility of the incidence of suicide attempts by school children. It proposes to organize parent education programmes on a school basis to help parents communicate better with their children and to alert them to the symptoms of children under mental stress. The programmes will also encourage parents to seek professional help where appropriate.
Aircraft deviating from flight path
6. MRS LAM asked: Will Government inform this Council:
(a) whether there were any incidents of aircraft deviating from their flight paths upon their approach to or departure from the Kai Tak Airport in the past year, and the reasons for such incidents, if any;
(b) whether the present manpower and facilities of the Kai Tak Airport are adequate in terms of quality and quantity to ensure the safe movement of aircraft in their take-off and landing; and
(c) what contingency measures are available in case of accidents?
SECRETARY FOR ECONOMIC SERVICES: Sir, in the past year, there has been one occasion where an aircraft deviated from the normal landing or departure flight paths. This occurred on 15 May 1991 when an aircraft approaching Kai Tak from the west was found to be flying south of the normal flight path before final approach to land on the runway. The air traffic controller monitoring the flight immediately instructed the aircraft to abort the approach; a second approach was made and successfully executed.
This incident was due to the pilot not aligning the aircraft properly with the runway. However, as he was in clear visual contact with the surface and was closely monitored by the air traffic controller, there was no degradation of flight safety.
Both manpower and facilities at Kai Tak Airport are adequate in terms of quality and quantity to ensure the safe movement of aircraft. Loss of manpower in the air traffic controller grade due to emigration, retirement and normal wastage has been made up by training local officers and direct appointment of experienced controllers from overseas. All these officers meet the stringent standards set by the
International Civil Aviation Organization (ICAO). In terms of facilities, the Hong Kong International Airport is well equipped with visual and electronic aids and follows the recommendations of ICAO in providing navigational guidance to aircraft approaching to and departing from Kai Tak.
There are well laid down emergency procedures to be followed by the Civil Aviation Department, Fire Services Department, the police and other relevant agencies in the event of an accident on or in the vicinity of the airport. Specialized equipment has been acquired for search and rescue, salvage of aircraft and so on. All
contingency plans are kept fully up-to-date and exercises are conducted periodically in order to maintain a high state of readiness to react to any situation.
Vietnamese boat people arriving undetected
7. MR POON CHI-FAI asked: On 15 May, more than a hundred Vietnamese boat people sailed smoothly into the harbour waterfront in Kennedy Town, Western District in a wooden motor vessel, as if they had entered unpatrolled waters and were not intercepted until their arrival was discovered by some nearby residents who reported the case to the police. Will Government inform this Council:
(a) the reasons for such glaring loophole in our patrol operations to the intrusion of a wooden motor vessel into the waters of the territory without any interception by the Marine Police; and
(b) what remedial measures are available to prevent the recurrence of similar incidents?
SECRETARY FOR SECURITY: Sir, most Vietnamese boats are intercepted near the sea boundary in the vicinity of Tai Ah Chau and Fan Lau. Some are intercepted as near as Cheung Chau. The exact location depends on the route they take.
The boat referred to in the question was not intercepted until its arrival was sighted and reported by local residents because:
(a) it entered Hong Kong waters at night, during a thunderstorm and in poor visibility; and
(b) the arrival of four other boats earlier in the day with 164 Vietnamese migrants on board had drawn some of the police launches away from their usual patrol areas for considerable periods of time. The process of intercepting, questioning and escorting these other boats to the first landing at Green Island had taken time.
The incident does need to be seen in a wider perspective. The police, whether patrolling on land or sea, cannot be everywhere at once. There are more than 8 000 vessel movements in the waters of Hong Kong each day. The vast majority of these vessels are small craft. In the southern sector of the Marine Police Region, which covers the waters south of Hong Kong Island from Po Toi and north to Tsing Yi, there are five police vessels on patrol on any given day. The fact that the vast majority of Vietnamese boats are intercepted well before they reach built-up areas is a
reflection of the efficiency of our Marine Police.
Salary tax
8. MR POON CHI-FAI asked: Given the personal allowance of $41,000 for a single person, anyone earning a monthly salary of $3,154 is required to pay salary tax when his year-end double pay is added to his total monthly salaries in a year. However, a breakdown of the monthly basic expenditure of a single person in general indicates that about $1,500 goes to rent and water and electricity charges, and some $1,900 goes to foodstuffs, travelling and miscellaneous expenses, thus making a total
expenditure of $3,400. As such, a single person living alone with an annual income of $41,000 can hardly make both ends meet, not to mention the payment of his tax bill. Will Government inform this Council:
(a) whether people who cannot afford to pay their salary tax can apply for
exemption for such payment from the Inland Revenue Department; and (b) how would the Administration deal with such applicants?
FINANCIAL SECRETARY: Sir, I shall not comment on Mr POON's assumptions regarding the monthly expenditure of a single person. In answer to his specific question, there is no provision in law for the Commissioner of Inland Revenue to exempt taxpayers from payment of tax that has been properly assessed. In exceptional circumstances and for genuine reasons, the Commissioner may exercise his discretion to allow a taxpayer, upon application, to pay the tax due by instalments.
A single person earning an annual income of $41,000 in 1991-92 pays no salaries tax. Even if his or her income is slightly above $41,000, the tax bill is still very small. For instance, on an annual income of $50,000, the tax payable by a single person is $180. When income increases to $60,000, the tax payable is only $380. At such low levels of tax, the tax bill is clearly not an undue burden.
Traffic congestion at Lion Rock Tunnel
9. MR CHOW asked: Will Government inform this Council whether the existing measures taken to tackle traffic congestion in the Lion Rock Tunnel are effective and adequate, and whether consideration will be given to improving the close-circuit system and the contingency measures of the Lion Rock Tunnel, so that incidents like that on May 19 will not recur?
SECRETARY FOR TRANSPORT: Sir, a number of measures are now being implemented to help ease traffic congestion at the Lion Rock Tunnel. These include:
(a) adopting traffic management schemes such as the tidal flow arrangement, the controlled merging of vehicles, and the lengthening of bus-only lanes in the approaches to the tunnel; and
(b) providing additional toll booths and exact toll lanes to improve traffic flow.
In addition, the widening of Tai Po Road and opening of the Shing Mun Tunnels
have reduced the volume of traffic using Lion Rock Tunnel from 104 000 vehicles per day in March 1990 to about 97 000 vehicles per day at present. A substantial improvement can be expected with the opening of the Tate's Cairn Tunnel on 1 July.
The closed circuit television system installed in 1978 is now reaching the end of its economic life and will be replaced early next year. The new system will provide for better surveillance and monitoring of traffic.
The incident on 19 May was rather unique. At 8.10 am on that day, a tipper lorry accidentally dropped its load of rubble in the northbound tube of the tunnel. The rubble scattered over a 900-metre stretch of the slow lane, which had to be closed for safety reasons. Although the incident was quickly spotted by tunnel staff using the closed circuit television system, it proved difficult for them to clear the rubble manually because of the sheer size of the obstruction, affecting some 3 000 square metres of road surface. Traffic congestion was further exacerbated by the breakdown of a heavy goods vehicle in the southbound tube at 8.35 am. Special equipment had to be deployed from the Highways Department to clear the rubble. The lane was finally reopened at about 12 noon.
Contingency plans have since been reviewed and fresh procedures introduced to speed up the response to any future occurrences of this sort.
Housing Subsidy Policy
10. MR TAM asked: Will Government inform this Council whether the Housing Subsidy Policy will soon be reviewed; whether the scope of the review will cover the continuation of the policy, the definition of "well-off tenants" and the method of calculating total household income; whether public consultation will be carried out on this issue and, if so, how the consultation exercise will be conducted?
SECRETARY FOR HOME AFFAIRS: Sir, on 11 July 1991 the Housing Authority will be asked to endorse a recommendation made by its Management and Operations Committee that an ad hoc committee should be appointed to review the Housing Subsidy Policy. The Housing Authority will also be asked to decide, among other things, on the scope of the review and how the public should be consulted.
Motions
ROAD TRAFFIC ORDINANCE
THE SECRETARY FOR TRANSPORT moved the following motion:
"That the period for which there remains in force the limit on the number of motor vehicles which may be registered as taxis specified in the Taxis (Limitation on Number) Notice 1990 published as Legal Notice No. 432 of 1990, be extended to 7 July 1992."
He said: Sir, I move the motion standing in my name on the Order Paper. Under section 23 of the Road Traffic Ordinance, a period is specified during which the number of vehicles, which may be licensed as taxis, is limited. This motion proposes that the period be extended by 12 months up to 7 July 1992 in accordance with section 23(3) of the Ordinance.
The effect of this extension is that the total number of vehicles which may be registered and licensed as taxis will remain at 15 150 in the case of urban taxis, 2 838 in the case of New Territories taxis and 40 in the case of Lantau taxis, as ordered by the Governor in Council on 11 December 1990.
Sir, I beg to move.
Question on the motion proposed, put and agreed to.
ROAD TRAFFIC ORDINANCE
THE SECRETARY FOR TRANSPORT moved the following motion:
"That the period for which there remains in force the limit on the number of vehicles which may be registered as public light buses specified in the Public Light Buses (Limitation on Number) Notice published as Legal Notice No. 146 of 1986 and extended to 20 June 1989 by Legal Notice No. 155 of 1987 and to 20 June 1991 by Legal Notice No. 152 of 1989, be further extended to 20 June 1993."
He said: Sir, I move the motion standing in my name on the Order Paper. Under section 23 of the Road Traffic Ordinance, a period is specified during which the number of
vehicles, which may be licensed as public light buses, is limited. This motion proposes that the period be extended for two years up to 20 June 1993 in accordance with section 23(3) of the Ordinance.
The effect of this extension is that the total number of vehicles which may be registered and licensed as public light buses will remain at 4 350, as ordered by the Governor in Council on 10 June 1986.
Sir, I beg to move.
Question on the motion proposed, put and agreed to.
First Reading of Bills
OATHS AND DECLARATIONS (AMENDMENT) BILL 1991
IMPORT AND EXPORT (AMENDMENT) (NO. 2) BILL 1991
OZONE LAYER PROTECTION (AMENDMENT) BILL 1991
SECURITIES AND FUTURES COMMISSION (AMENDMENT) BILL 1991
ROAD TRAFFIC (AMENDMENT) (NO. 3) BILL 1991
POLICE CHILDREN'S EDUCATION TRUST (AMENDMENT) BILL 1991
POLICE EDUCATION AND WELFARE TRUST (AMENDMENT) BILL 1991
Bills read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3).
Second Reading of Bills
OATHS AND DECLARATIONS (AMENDMENT) BILL 1991
THE CHIEF SECRETARY moved the Second Reading of: "A Bill to amend the Oaths and Declarations Ordinance."
He said: Sir, I move that the Oaths and Declarations (Amendment) Bill 1991 be read a Second time.
The object of this Bill is two-fold. First, section 19 of the principal Ordinance at present provides that the Oath of Allegiance or the Legislative Council Oath for Members of the Council shall be tendered by the Governor or other Member presiding. Clause 2 of the Bill seeks to amend this section so that the oaths will the tendered by the President or Deputy President of the Council or other Member presiding.
This amendment will bring the Ordinance into line with the Legislative Council (Powers and Privileges) Ordinance and the Standing Orders of the Council, both of which draw a distinction between the executive role of the Governor and his role as the President of the Council. The amendment will also help to establish the identity of the President of the Council in preparation for an elected President in 1995.
The second object of the Bill relates to the wish of Members to amend section 22(3A) of the principal Ordinance so as to allow the Standing Orders to require Members to take their oaths afresh after a general election of the Council. At present section 22(3A) provides that no Member of the Council who has already taken an oath shall be required to take it again. This object will be achieved by clause 3 of the Bill.
Sir, I move that the debate on this Bill be now adjourned.
Question on the adjournment proposed, put and agreed to.
IMPORT AND EXPORT (AMENDMENT) (NO. 2) BILL 1991
THE FINANCIAL SECRETARY moved the Second Reading of: "A Bill to amend the Import and Export Ordinance."
He said: Sir, I move that the Import and Export (Amendment) (No. 2) Bill 1991 be read the Second time. This Bill seeks to introduce controls over weapons and related items in transit through Hong Kong.
The scope of the new controls will be limited to specified munitions and items
for use relating to nuclear, chemical or biological weapons. Other goods in transit will remain free from control.
This action is taken in response to a growing international consensus that controls are necessary to help check the proliferation of such weapons. I would stress, however, that this is intended to be a preventive measure. There is no indication that weapons of the type to be controlled are being shipped through Hong Kong. Therefore, the new powers will be used only sparingly, if at all.
Sir, I move that the debate on this motion be now adjourned.
Question on the adjournment proposed, put and agreed to.
OZONE LAYER PROTECTION (AMENDMENT) BILL 1991
THE FINANCIAL SECRETARY moved the Second Reading of: "A Bill to amend the Ozone Layer Protection Ordinance."
He said: Sir, I move that the Ozone Layer Protection (Amendment) Bill 1991 be read the Second time.
This Bill seeks to ensure the trading of such substances which fall under the control of the principal Ordinance will remain outside the scope of control while transitting Hong Kong. The provisions are consequential amendments to the Import the Export (Amendment) (No. 2) Bill 1991 which I introduced earlier.
Sir, I move that the debate on this motion be now adjourned.
Question on the adjournment proposed, put and agreed to.
SECURITIES AND FUTURES COMMISSION (AMENDMENT) BILL 1991
THE FINANCIAL SECRETARY moved the Second Reading of: "A Bill to amend the Securities and Futures Commission Ordinance."
He said: Sir, I move that the Securities and Futures Commission (Amendment) Bill 1991
be read the Second time.
This Bill seeks to facilitate co-operation between the Securities and Futures Commission and other financial market regulators through a limited relaxation of the existing secrecy requirements, but without prejudicing the general confidentiality of information obtained by the Commission for regulatory purposes.
Under the Securities and Futures Commission Ordinance, the Commission can disclose information to other regulators only if disclosure is considered desirable or expedient in the interests of the investing public or in the public interest. The Commission cannot disclose information to other regulators merely for the purposes of co-operation or assistance. This has created difficulties for Hong Kong securities companies conducting business overseas because overseas regulators often wish to seek the assistance of the regulatory authorities in Hong Kong. The restriction has also on occasions hampered the effective regulation of financial institutions in Hong Kong.
This Bill proposes to include a new function for the Commission to co-operate with and assist other regulators, both domestic and overseas. It seeks to allow the Commission to disclose information to other regulators to enable them to perform their functions, provided they are subject to adequate secrecy provisions and provided the disclosure is not contrary to the interests of the investing public or to the public interest.
The opportunity is taken to include a few refinements to the existing secrecy requirements in an attempt to remove certain operational difficulties being experienced by the Commission.
In formulating these amendments, we have given due consideration to the need for adequate legal and administrative controls to guard against improper disclosure of information by the Commission or recipients of such information.
Sir, I move that the debate on this motion be now adjourned.
Question on the adjournment proposed, put and agreed to.
ROAD TRAFFIC (AMENDMENT) (NO. 3) BILL 1991
THE SECRETARY FOR TRANSPORT moved the Second Reading of: "A Bill to amend the Road Traffic Ordinance."
He said: I move the Second Reading of the Road Traffic (Amendment) (No. 3) Bill 1991.
This Bill provides for the designation of expressways, and for the use, control and management of these roads.
Expressways differ from other roads in that they are designed to carry large volumes of traffic at higher speeds. Tolo Highway, Island Eastern Corridor and Tuen Mun Highway are examples of roads which will be designated as expressways under this new legislation. At present, the Road Traffic Ordinance does not provide sufficient control over the use of such roads, particularly with regard to safety standards.
The major provisions of the Bill are contained in clause 6, which adds a new part to the Road Traffic Ordinance. It empowers the Commissioner for Transport to designate roads as expressways and determine their boundaries. It regulates the implementation of roadworks on expressways, provides for the removal of plant and equipment causing an obstruction, and restricts access to and exit from these roads. Furthermore, the Bill enables the Governor in Council to make regulations, for example concerning the types of vehicles permitted to use expressways and the new driving rules applicable. The emphasis in the new regulations will be on measures to improve the safety of expressways, for example with regard to lane discipline.
Sir, I move that the debate on this motion be adjourned.
Question on the adjournment proposed, put and agreed to.
POLICE CHILDREN'S EDUCATION TRUST (AMENDMENT) BILL 1991
THE SECRETARY FOR SECURITY moved the Second Reading of: "A Bill to amend the Police Children's Education Trust Ordinance."
He said: Sir, I move that the Police Children's Education Trust (Amendment) Bill 1991 be read a Second time.
The Bill seeks to amend section 10(3) of the Police Children's Education Trust Ordinance to extend by three months the period within which the annual audited statement of accounts and report of the trustee on the administration of the fund under the Ordinance must be tabled in this Council. At present, the Commissioner of Police, who is the trustee, is allowed six months to prepare his submission each year. This has proved to be insufficient given the considerable assets and transactions involved. A total of 1 700 students and officers received assistance from this Trust and from the Police Education and Welfare Trust in 1989-90. The revised deadline will allow the Commissioner a more reasonable time to submit his reports so as to avoid late submissions.
I move that the debate on this motion be now adjourned.
Question on the adjournment proposed, put and agreed to.
POLICE EDUCATION AND WELFARE TRUST (AMENDMENT) BILL 1991
THE SECRETARY FOR SECURITY moved the Second Reading of: "A Bill to amend the Police Education and Welfare Trust Ordinance."
He said: Sir, I move that the Police Education and Welfare Trust (Amendment) Bill 1991 be read a Second time.
The Bill seeks to amend section 10(3) of the Police Education and Welfare Trust Ordinance to extend by three months the period within which the annual audited statement of accounts and report of the trustee on the administration of the fund under the Ordinance must be tabled in this Council. The rationale of the proposal is similar to that of the Police Children's Education Trust (Amendment) Bill 1991 which I moved earlier.
Sir, I move that the debate on this motion be now adjourned.
Question on the adjournment proposed, put and agreed to.
HONG KONG BILL OF RIGHTS BILL 1990
Resumption of debate on Second Reading which was moved on 25 July 1990 Question on Second Reading proposed.
MRS CHOW: Sir, almost one year after the debate on the White Bill of the Hong Kong Bill of Rights, we are once again debating on the subject here today, this time with the view to passing the Bill into law.
This long drawn out process has tested our patience at times, but looking back it is time well spent; for comparing the final version of the Bill to the original Blue Bill, with all its amendments to be moved at Committee stage, it has embraced almost all of the changes that our ad hoc group and the Legislative Council In-House meeting, by majority, have decided to introduce. For this, we must thank the very open and receptive attitude that the team in the Administration headed by Mr Michael SUEN has chosen to adopt throughout the course of our deliberation.
Naturally we are appreciative also of the valuable opinions put forward to us by groups and individuals. Their views, which they have all kindly agreed to present in public, have been well reported by our conscientious members of the media, and in turn has fulfilled a most useful function in educating the public as well as
generating discussions on the Bill.
One of the major successes in persuasion on our part is to secure from the Administration the agreement to accept the amendment to allow the Bill to come into operation immediately after it has been passed and gazetted, instead of the original proposal to have a blanket freeze for one year and possibly a partial freeze for another year. As a result of this concession on the part of the Administration, Hong Kong will have our Bill of Rights in operation from 8 June. Six Ordinances, which are mainly laws related to security and law and order, will be frozen for one year, with the provision for this Council to grant another year should it be convinced that there is need for it.
As I have gone into detail the question of entrenchment in our debate on the draft Bill last year, I do not intend to go over old grounds. Suffice it to say that the indirect entrenchment of the Bill through an amendment to the Letters Patent, which has been effected in March this year, is accepted by our members as the best possible compromise that can be achieved, given that it is at this stage unrealistic to expect an amendment to the Basic Law to entrench the Bill directly. That is not to say that
we should not hope to work towards this at a later stage, but allow me to go into that a little later.
The third big issue tackled by the ad hoc group is whether inter-citizen rights should be included or taken out from the Bill. Referring once again to our previous conclusion on this as contained in our report on the White Bill, members recommended that inter-citizen rights should be deferred until the Bill has been given adequate time to operate between Government and individuals. This recommendation resulted from repeated representation from the business sector as well as legal practitioners.
This recommendation, however, was not taken on board by the Administration in the Blue Bill, and this gave rise to renewed representation. After months of discussion, the Administration finally came round to the view, though rather late in the day, that inter-citizen application of the Bill should be excluded at this stage, to the relief of those who fought long and hard for it. Amendments will be moved during Committee stage to cover this change. However members agreed that Government should work towards specific legislation to combat the intrusion of essential rights in the private sector.
Consideration has also been given to a number of less contentious issues.
There was discussion concerning clause 5 which deals with derogation to be allowed from the Bill. The question was whether the phrase "the life of the nation" should be substituted by "the life of Hong Kong". In the end members accepted that given there is safeguard built in against the derogation of certain internationally
prescribed rights, and that measures to be taken are limited by "the extent strictly required by the exigencies of the situation", the proposed amendment to ensure that measures should be taken in accordance with law is an acceptable compromise.
Representation regarding Part III of the Bill, that is, Exception and Savings, went along two lines. Some continued to press for the exclusion of this part, which aims to include in the Bill the reservations attached to the Covenant. Members however accepted the reservations, as their inclusion reflects the ICCPR as applied to Hong Kong but does not preclude developments which go beyond the reservations in the future as and when circumstances allow them to be lifted. Others felt the word "reservations" was preferrable because it did not imply an acceptance of a principle or something of a permanent nature. As this was more a cosmetic rather than a substantive point, members agreed to retain the original phrase of "Exceptions and
Savings".
There was some public criticism of the omission of the International Covenant on Economic, Social and Cultural Rights from the Bill. Our members' view on this has remained unchanged. We felt the present Bill should be enacted as soon as possible, and any attempt to include the ICESCR would for certain delay the present Bill. However we urge the Administration to explore ways and means, administrative and legislative, to protect rights enshrined in the ICESCR.
As for the review of Ordinances which are frozen, we are sensitive to concerns still nagging the public as to whether the Bill of Rights might adversely affect the effective enforcement of law and order. Another Ordinance which the legal fraternity has consistently raised question on is the Crown Proceedings Ordinance. It appears the urgent attention of the Administration is required, and the result of study and proposed action need to be made public as soon as possible to allay uncertainties and concern.
A separate and related issue is the formation of the Human Rights Commission. The ad hoc group itself has divided views on the issue. However the unanimous view was that disagreement on the function and terms of reference of this body should not delay the passage of this Bill.
In the meantime we would urge Government to fulfil its promise to study the matter with sincerity and expediency, so that a conclusion acceptable to most can be arrived at and made public soon.
Having recapitulate the work and conclusions of our ad hoc group, I would now like to say a few words on my own personal views on the Bill.
The Bill before us is by no means ideal or perfect. But then very few things in life are and I believe that given the political and constitutional constraint of the Basic Law, we have a document which is at least adequate enough to provide us with a reasonable start to establish a tradition of respect and a legal framework of protection for what is essential in the way of rights and freedoms for all of us. We do not have, as other jurisdictions do, the luxury of time. We have to wrangle with legislative, constitutional and political complexities and constraints. But as a community we have the will to preserve the rights of the individual. This Bill, if nothing else, enables us to be on our way.
When the concept of the Human Rights Commission was debated in this Council, much of its value was seen to be educational. Personally I maintain that such a body is desirable. However I do recognize the doubt that may be harboured by perhaps the more conservative-minded whether such a body would not be politically too sensitive or too confrontational. I am therefore inclined to accept the Administration's
proposal to form an advisory body as a first step, perhaps along the lines of the Consumer Council, where the educational role can be expanded to include advice to citizens, and investigation into complaints, particularly with regard to disputes between private citizens and concerns. The latter could rely on the public exposure of malpractice or blatant disregard of not just this Bill but also the ICESCR, and can prove inspiring to the adoption of specific legislation and other government measures to counteract contravention.
Sir, after one and a half years of living with this Bill and its previous White Bill, I take the greatest pleasure in supporting the motion.
MISS TAM: Sir, once again, I support the enactment of the Hong Kong Bill of Rights. I welcome the one-year freeze on the six existing legislations which may contain provisions inconsistent with the Bill of Rights, and I would urge that any civic or public education measures on human rights must be presented with proper emphasis on responsibilities towards the community and under the law.
Although not enhrined in any specific legislation, basic human rights have long been observed in Hong Kong. They are now even recognized by the incorporation of these rights in the Basic Law following the provisions of the Joint Declaration. The Bill before Council today does no more than transform the contents of the
International Covenant on Civil and Political Rights, as it is applied to Hong Kong, into a local piece of legislation to make such provisions enforceable in the courts of Hong Kong, and I believe we have not contravened the Basic Law. I believe this to be a proper arrangement in safeguarding the rights of those who live in this
territory now and in the years to come.
In respect of the freeze period on the six legislations, however, I would urge that some degree of flexibility be allowed as to its implementation.
Law and order in Hong Kong is increasingly difficult to maintain. The choice
for us is simple: accept some constraints or tie up the hands of law enforcement officers and be caught at times unprepared for an onslaught of imported criminal activities or rising triad activities.
In some ways 1997 has created a sense of helplessness among many who have a growing desire -- which we do not endorse -- to grab as much money as possible and leave Hong Kong before that date. The ICAC needs the support of legislation to conduct its investigations effectively and to deal with corruption activities. To even suggest that their powers under the existing anti-corruption laws should be done away with at this point in time is a somewhat naive, if not irresponsible, approach to solving the problem before us.
Hong Kong has a peculiar problem in that it is being "invaded" by people from Vietnam and the mainland. To dilute the powers of the immigration authorities or to strip the police force of effective crime prevention powers would only leave our citizens open to losing their property and even put at risk their personal safety.
Let me make it clear that the responsibility of striking the right balance between protecting one individual's freedom and another individual's life and limb is on the shoulders of the legislators. The police do not make the law. They only execute police duties according to the law. If the law says that the police have no power to conduct stop and search or to check identification cards, I have no doubt they will comply. Under such circumstances, however, no one can blame them if guns and offensive weapons are carried around by illegal immigrants in our streets, looking for an innocent victim to rob.
I believe that a careful eye must be kept on the law and order situation in Hong Kong in this one-year freeze period. I know that there is some flexibility in this area and let us not be afraid to use it if it is for the common good.
Finally I come to rights with responsibility. The Hong Kong Bill of Rights giv es protection to individual human rights through proceedings in the courts. It must not be misunderstood that the forum of enforcing such rights is on the street. I have read at times from the press that some have declared that they are prepared to hold public rallies and demonstrations without getting police permits -- because it is their "right" to do so. We perfectly accept the fact that sometimes the size of processions are rightly beyond the control of the police and they have not only
tolerated it but managed it with great skill, and not bothering about compliance with
licensing laws. Sir, I fully support this attitude. I think it is a wise exercise of police discretion. But ultimately I think it is public education that would definitely strike the right balance on how to use our civic and human rights with a full sense of responsibility of ultimately keeping the law of our community binding and effective. No doubt, the advisory committee will do a great deal in this particular aspect.
Sir, I have not spoken on the substance of the Bill because it is by now very familiar to us all. I would however congratulate Mrs CHOW and the ad hoc group for a splendid mission accomplished, knowing the difficult problems they have to tackle, and I support the Bill in the form proposed by the ad hoc group to this Council.
MR SZETO (in Cantonese): Sir, not only human beings but also pigs, dogs, cats and all kinds of animals must eat to live. If one does not eat, one starves. If one starves for a long time, one dies. This is why having enough to eat in order to live is not a human right. It is merely an animal right or a right of beasts.
Human beings are different from animals. Sometimes, they will not eat even when there are things to eat. They would rather starve and die.
During the reign of Yin of the Shang Dynasty, two brothers Boyi and Shuqi remained loyal to their tribe and were ashamed to eat the grain of the Zhou Dynasty. They starved themselves to death on Mount Shou Yang.
Another well-known historical tale tells of "a rude invitation to a meal." A man about to die of starvation wanted to maintain his human dignity. He refused to eat the meal that was doled out to him in contempt. He would rather die of starvation.
Our ancient sages, by giving personal examples, drew us a clear line that distinguished man from animals.
The mouth of a man is different from that of an animal. It is used not only for eating but also for speaking and for expressing thoughts and sentiments, for man does have thoughts and sentiments. For this reason, the freedom of speech, and the freedom to express one's thoughts and sentiments are the rights to be enjoyed by man alone. Man not only should have the freedom of speech but also the freedom of silence.
Further, he should have the right to be free from coercion and the right to refuse to speak against his conscience. This is the more important human right.
Of course, human rights also include a wealth of other things. The most basic principles of human rights are respect for the person, respect for human dignity and equality among all men. If the human person and human dignity are given due respect and there is equality among all men in community, men will have a sense of belonging in the community and will be motivated to play a positive role, and that community will prosper, flourish and people living in it will lead a happy life. This in turn will bring about a higher spiritual civilization and material civilization. This is why all developed countries are countries that, relatively speaking, have more respect for human rights and countries where human rights are being increasingly enhanced.
The Bill of Rights to be passed today, despite its various shortcomings, is a sign that the people of Hong Kong, unlike animals which merely want to eat and remain alive, want to live like human beings. This is a milestone in our history. We must move towards another milestone and go on to rectify the various deficiencies in the Bill of Rights Bill passed today.
With a Bill of Rights, we still have to exert great efforts to teach human rights to our six million citizens, propagate the idea of human rights and build up a strong moral force that fights for, protects, respects and treasures human rights. A strong moral force is the shield and the buckler of the law. This is why it is essential to establish a Human Rights Commission.
Today is 5 June, the morrow of a painful date. The passing of the Bill of Rights today is a coincidence. It is, however, a very meaningful and thought-provoking coincidence.
Sir, with these remarks, I support the motion for the Second Reading of the Bill. I will also support the Honourable Martin LEE's motion for amendment at the Committee stage.
MRS TAM (in Cantonese): Sir, after nearly two years of deliberations and thorough examination since the drafting of, and consultation on the Hong Kong Bill of Rights Bill, this Council has now completed its scrutiny of the Bill. As a member of the Legislative Council ad hoc group studying the Bill, I realize the magnitude of the work involved, as well as the considerable efforts and time spent by colleagues in
this Council. May I take this opportunity to congratulate the Honourable Mrs Selina CHOW LIANG Shuk-yee and the Honourable Ronald ARCULLI, convener and deputy convener of the ad hoc group respectively.
The passage and implementation of the Hong Kong Bill of Rights Bill signifies the beginning of a new era in the history of Hong Kong's human rights development. While supporting this Bill, I would also like to reiterate my appeal to the Administration to emphasize the importance of education on human rights. As some of my honourable colleagues will elaborate on other aspects of the Bill, I have no intention to harp on what they are going to say and shall therefore concentrate on the subject of human rights education in my speech today.
From the legislators' point of view, it appears that the task has been completed with the enactment of the Bill. But in fact we are just making a start in the realm of human rights education.
In last year's debate on the Bill, I specifically pointed out that education on human rights among young people should be promoted as soon as possible, so as to help our young people cultivate through personality development their respect for, and recognition of the value of human rights, as well as to make them aware of the
importance of the rule of law and the need for maintaining social order.
In passing this Bill, I wish to draw particular attention to two points in regard to the promotion of human rights education.
First, the Administration should attach importance to popularizing education on the concept of human rights.
In previous discussions on the Human Rights Bill, I have noticed that groups and individuals expressing concern or taking part in the discussion were mostly from the legal profession. More importantly, the dissemination in no unclear fashion of the essense of the new legislation upon enactment of the rigid provisions contained
therein should be a long-term objective in educating the public; otherwise, the legislation will be little more than window-dressing which cannot reflect the community's progress in developing the concept of human rights.
In the past, Government efforts made to popularize legal education have been far from adequate. I think when promoting the new legislation in the future, the
Government should make the public realize the rights and obligations involved, instead of just focussing its attention on the legislation's promulgation, enactment and implementation. This will ensure that the term "human rights" will not be misused or abused by members of the public.
Second, the Government and non-governmental voluntary agencies or organizations from the legal profession should work together to educate the general public and the younger generation on human rights through different channels and levels of work. Judicial and law enforcement departments within the Government should be issued with guidelines as soon as possible on the implementation of the Bill. Besides,
educational bodies and organizations from the legal profession should promote the new concept of human rights at the grass roots level and in schools through civic education. In this way, not only will the public be made aware of the protection afforded to them by the law, the foundation of human rights education in Hong Kong will also be further strengthened.
With these remarks, Sir, I support the motion.
MR TAM (in Cantonese): Sir, I have clearly stated my basic position on the Hong Kong Bill of Rights Bill 1990 in the past debate and do not intend to repeat my arguments today. Instead, I wish to point out its flaws and omissions.
The Bill states in the very beginning that it is a Bill to "implement further the International Covenant on Civil and Political Rights as applied to Hong Kong; and for ancillary and connected matters". As we all know, the British Government has signed this international covenant in 1976 and extended its application to all territories under her jurisdiction, including Hong Kong. However, not until today did the Government decide to implement further the Covenant by means of local law. No wonder there is some doubt as to the motive of the Administration and its sincerity in protecting human rights. Even if we do not speculate on the motive of the
Government, the Bill itself as drafted is far from being satisfactory because it only covers political rights and not economic or labour rights.
At present, the introduction of the Hong Kong Bill of Rights is based on two co nsiderations: first, the international covenant on human rights signed by Britai n in 1976 on behalf of Hong Kong; and second, Article 39 of the Basic Law which states that "The provisions of the International Covenant on Civil and Political
Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the Laws of the Hong Kong Special Administrativ e Region". According to the Government, these two considerations are mainly to ensure that the Bill of Rights will continue to be in force after 1997 and indi rectly enjoy a status superior to other Ordinances. However, both the internati onal covenant on human rights signed by Britain in 1976 on behalf of Hong Kong a nd Article 39 of the Basic Law include the International Covenant on Civil and P olitical Rights (ICCPR) as well as the International Covenant on Economic, Socia l and Cultural Rights (ICESCR). In other words, no matter the Administration in tends to implement further the international covenant on human rights signed by Britain in 1976 on behalf of Hong Kong or enforce in advance Article 39 of the Basic Law, the Bill of Rights should incorporate the two international covenants and not the ICCPR only. In this case why did the Administration exclude the ICESCR from the Bill of Rights? Is it that the existing protection for the economic, social and cultural rights of our citizens is very adequate and it is no longer necessary for the Government to implement such an international covenant? The answer is, of course, in the negative. If we look at the tenants of cage houses, the street-sleepers, the elderly who have no one to depend on and make a living by picking odds and ends from refuse heaps, and the existing labour legislation which fails to provide adequate protection, we will see that for the citizens at the grassroots level, economic, social and cultural rights are very important but inadequate.
However, the Administration has excluded these important basic rights from the Bill for an untenable reason. It claims that if the rights enshrined in the ICESCR are incorporated, the enactment of the Bill of Rights will be delayed. Here I would like to ask the Administration whether it will promise to introduce a new Ordinance for the implementation of the ICESCR after the passage of the Bill of Rights and allow it to have similar legal effect. I believe the answer is in the negative.
The Administration has not only excluded the ICESCR from the Bill of Rights but also, under the persuasion of the industrial and commercial sector, amended clause 7 which may to a certain extent safeguard the interests of local workers. Consequently, the covenant on human rights no longer has any binding effect on private companies and individuals.
According to clause 7 of the Hong Kong Bill of Rights Bill 1990, the following provisions may, to a certain extent, provide protection for workers:
(1) Article 22 "Equality before and equal protection of Law"
The effect of this article may deter private companies or individuals from performing unfair and discriminating acts, so that employers cannot treat their employees unfairly or discriminate against them.
(2) Article 4 "No slavery or servitude"
Some scholars have pointed out that the term servitude in this provision may be interpreted as employing and exploiting illegal immigrants as well as prohibiting employees from changing employers by means of employment contract.
(3) Article 16 "Freedom of opinion and expression"
By virtue of this article, employers cannot prohibit their employees from criticizing them in public.
There is only a likelihood that the above provisions will provide protection for the labour sector because they are merely a possible extension of political rights and their enactment is not really for the purpose of safeguarding the interests of workers. Nevertheless, the Administration will readily abandon the relevant
provision even though the protection probably provided is limited in scope. It shows that the Government is not so sincere in protecting the interests of the citizens at the grassroots level. Actually, I believe that for most Hong Kong people, it will be more important and urgent to have protection for their rights during work. For example, they will not be dismissed by their employers in retaliation for their
complaints against the employers and they will be treated with proper respect during work. However, the Administration does not care to provide such protection.
It is not surprising that the general public of Hong Kong have been indifferent and shown no interest throughout the drafting process of the Bill of Rights. I believe that the Bill will be popular among our citizens if the following provisions are incorporated: "Everyone has the right to work", "Everyone has the right to enjoy fair and good conditions of service", "Everyone has the right to enjoy social security, including social insurance benefits", "Everyone has the right to enjoy for the sake of his own and his family a proper standard of living, including proper provision of clothing, food, housing and a continuous improvement in living environment". Of
course, I am sure the Administration will not and has no intention to apply these provisions to Hong Kong. Otherwise, what excuse can the Administration have for not introducing a comprehensive social security scheme? How can it implement the importation of foreign labour policy which affects the working right of local workers?
Sir, the fact that the Bill of Rights only covers political rights and not economic, social and cultural rights has regrettably reflected the Administration's neglect of the interests of the citizens at the grassroots level in formulating its policies. And I cannot agree to the amendment made to clause 7 of the Bill by which the Bill of Rights no longer has binding effect on private companies and individuals. Therefore, I abstain from voting.
MR ANDREW WONG (in Cantonese): Sir, I rise to speak in support of the Second Reading of the Bill of Rights Bill. There is nothing new in my reasons for supporting the Bill of Rights. These reasons were canvassed at length during this Council's debate of 27 June last year on the Honourable Mrs Selina CHOW's motion "That this Council supports the enactment of a Bill of Rights ....." At that time, I refuted what I considered to be the six fallacious arguments of those opposed to the Bill of Rights.
However, since last year these six fallacious arguments of the opponents to the Bill have continued to hold sway over certain sectors of public opinion. It really looked as if they were hoping that a falsehood repeated a hundred or a thousand times would become the truth. The six fallacious arguments are briefly as follows:
The first of these views is to this effect: "Why do we still need a Bill of Rights this late?" or "Why can't we go about it at a slower pace now that it's going to be late anyway?" or "Why didn't we have it over and done with earlier but instead choose a particularly sensitive moment as now to get started?"
The second of these fallacious views is to this effect: "The human rights concept Chinese people hold is radically different from that of the west. The people of Hong Kong basically do not identify themselves with the western concept of human rights. Western criteria on human rights should not therefore be imported, or, if ever, they should at least be imported in a gradual manner."
The third of these fallacious views is to this effect: "The common law already affords adequate protection for human rights; why should a Bill of Rights be enacted?"
or "The United Kingdom does not have a Bill of Rights; why should Hong Kong have one?"
The fourth of these fallacious views is to this effect: "The Bill of Rights will be superior to the Basic Law" or "It will reduce the Basic Law to nonentity" or "It will conflict with the Basic Law" or "The Basic Law already provides adequate safeguards for human rights; why should a Bill of Rights be enacted?"
The fifth of these fallacious views is to this effect: "The measures to safeguard human rights as provided in the Bill of Rights Bill being neither entrenched nor accorded an over riding status, they will not be the best means to achieve the intended purpose; why should such lame measures be adopted?"
The sixth of these fallacious views is to this effect: "Many of the existing Ordinances are inconsistent with the Bill of rights and if the Bill is passed into law enormous social repercussions will ensue. Therefore it will not be advisable to enact a Bill of Rights, or, at least, not to have it enacted in haste".
Sir, I am again citing the arguments of the opponents, though going over them hurriedly. It would appear that I am speaking for the opponents. My real intention is to hit out at them again for these are arguments which I consider to be fallacious. However, because my time is limited, I will not speak at length. I shall invite all my honourable colleagues and citizens to read Pages 1402-1404 of the Chinese language edition of the Hansard of 1990. (Pages 1802-1806 of the English language edition.)
Sir, among my many respected colleagues who just spoke, two stand out most conspicuously. One is the Honourable Y.C. TAM. Although he said that he would not repeat his words of last time, he did in fact repeat them. Furthermore, his speech could be said to be "flying the red flag but yet opposing it". The second is the Honourable W. SZETO. I think that he is best able to illustrate the importance of human rights and to explain what human rights are and what animal rights are. I hereby salute the Honourable W. SZETO. I agree with every word that he said, except for the last two sentences where he said in advance that he would support the Honourable Martin LEE's arguments for amendments to the Bill at the Committee stage.
Sir, permit me to repeat the conclusion that I stated last year: "We should not merely wait for a better tomorrow. We should work hand in hand to create a better tomorrow."
Sir, I support the motion for the Second Reading of the Bill of Rights Bill.
MR ARCULLI: Sir, my honourable colleagues have covered most, if not all of the important issues concerning the Bill of Rights today and in our previous debate, and I shall therefore restrict really my comments to only one point which is the absence of inter-citizen rights in the Bill of Rights. In layman's terms this means that the Bill does not deal with infringement of a person's rights under the Bill by another person or body that is not the Government or a public authority. I would like to remind ourselves that the Legislative Council In-House, in its report on the White Bill in June 1990, had this to say, and I quote:
"The ICCPR recognizes the inter-citizen rights".
The ad hoc group felt that the right of action as between private individuals could be deferred for the time being. The ad hoc group went on to recommend that the rights of action as between private individuals should be handled by a Human Rights Commission. Subsequently, there was much discussion about inter-citizen rights and a Human Rights Commission. These discussions led to the present situation of taking inter-citizen rights out of the Bill completely, and not incorporating a Human Rights Commission. I made known my views on the absence of rights as between individuals in a previous debate and I shall not repeat my argument. I would have preferred the Bill to have included such rights but, sadly, I was unable to persuade my honourable colleagues of the folly of their conviction.
With the promise that specific legislation would be introduced to give private individuals protection of their rights, I find it would be wrong for me to vote against the Bill or even to abstain from voting today. As for the Human Rights Commission, the Administration has raised a point which I believe would merit our examining
whether we should proceed with the Human Rights Commission at this point. It simply deals with the point that if one were to have a commission which exactly functions and which would include the powers of investigation and mediation, such a commission would require to have legislative backing. I do not believe that we should delay today the passage of this Bill for the establishment of such a commission.
A short cut is to set up an Advisory Committee first, and we can then look at the issue again when we have gathered a little experience.
Sir, that is perhaps proceeding with a little caution, but that, in my view, is the Hong Kong way.
Sir, with these comments, I support the Bill.
MR CHOW (in Cantonese): Sir, the United Nations making reference to the 40 freedom indicators in the publication "World Human Rights" measured the performance of 88 countries and territories in the field of human rights. Hong Kong only ranked 25th. I hope that after the enactment of the Bill of Rights Bill, human rights and freedom in Hong Kong will be given a boost.
However, the Bill to be enacted today contains a lot of inadequacies to which we must not turn a blind eye.
First, I do not agree to having one year's freeze period for the Bill. I also do not favour the exemption of six Ordinances, including the Immigration Ordinance, Societies Ordinance, Crimes Ordinance, Prevention of Bribery Ordinance, Independent Commission Against Corruption Ordinance and Police Force Ordinance, from being
subject to challenge by the Bill of Rights Bill.
From the inception of the Bill to its Second Reading, one year has lapsed. The Law Reform Commission should have had adequate time to deal with the Ordinances that are in conflict with the Bill of Rights and should not shelve the issue. The freeze of one year is a dangerous precedent. If the six Ordinances have not been amended next year, does it mean that Legislative Council would have to extend the freeze period year in, year out?
I think that the one year period of freezing is superfluous. For Ordinances that are in conflict with the Bill of Rights, they should be referred to the Court or the Human Rights Commission. Only by so doing can the human rights of the citizens be protected.
The scope of protection under the the Bill includes only the rights under the International Covenant on Civil and Political Rights but not the rights under the International Covenant on Economic, Social and Cultural Rights. The Government's arguments are not convincing. The rights included in the International Covenant on Economic, Social and Cultural Rights are not included. Therefore the Bill of Rights
as we now have is fragmented and not comprehensive. Many important human rights, for example the rights to strike, the rights to education and work are ignored. Moreover, the protection of the rights against discrimination are inadequate. Some provisions, for example those that would safeguard the rights of females and AIDS carriers are lacking. This is a deficiency in the Bill.
Finally, it is another deficiency that the Bill denies the establishment of the Human Rights Commission for the promotion of education and mediation of personal disputes. The Government must reconsider whether this decision is appropriate. In fact, the Ontario Human Rights Commission functions well. Its achievement in dealing with discrimination cases can be affirmed. If we do not want the Human Rights Bill to become a "flower vase", we must set up a Human Rights Commission. The Commission will promote and publicize human rights and its duty will be heavy and meaningful. Moreover, the Commission will play an important role in dealing with inter-citizen rights disputes. Most of the members of the ad hoc group are in support of the
establishment of the Human Rights Commission. I really do not understand why the Government should veto such a proposal?
Sir, the protection of human rights is the obligation of a responsible government. If the Bill of Rights attaches importance to packaging and not the real function of protecting human rights, this will only be the hypocrisy on the part of the Government.
Sir, I support this debate. I will also support the amendment motion that will be moved by Mr Martin LEE in the Committee stage. That is something Mr Andrew WONG would not like to hear.
MRS FONG: Sir, when the White Bill of Rights was discussed at the Legislative Council in June last year, I expressed my reservations because of several issues. Today I will briefly re-visit them.
The fundamental concern I have with respect to the Bill of Rights is that it should not weaken the ability of Hong Kong to maintain its law and order. In this connection, I am glad that the Administration has proposed a one-year freeze period in relation to several laws namely: the Prevention of Bribery Ordinance, the Independent
Commission Against Corruption Ordinance, the Immigration Ordinance, the Police Force Ordinance, the Societies Ordinance and the Crimes Ordinance. The one-year freeze period is important today but it will be equally important when an extension of the
period has to be considered.
All of these Ordinances are extremely important to the maintenance of law and order and the welfare of our citizens, society and livelihood. I have to sound my warning to the Administration that we cannot let these laws become diluted and weakened in their statutory powers because we wish to accommodate the Bill of Rights.
Next, I do not know if our Administration has discussed with the Chinese Government on this Bill of Rights. My expectation is that since the Bill of Rights does not conflict with the Joint Declaration, or with Article 39 of the Basic Law, the Chinese Government should view it as the domestic legislation which seeks to implement the International Covenant on Civil and Political Rights. Clearly, if we are passing this Bill of Rights today, we would certainly want it to continue beyond 1997. I believe that this can be done and thus do not let the issue overshadow my assessment of the benefits that can be achieved.
I continue to believe that it is not absolutely necessary for the Bill of Rights to become part of the local legislation, because such "rights" are already provided for in Annex I to the Joint Declaration and Article 39 of the Basic Law. However, I have come to accept that having the rights written into the domestic legislation does help to clarify the matter and can provide more certainty for the Hong Kong community.
With respect to the role that has been played by the Administration in guiding this Bill of Rights, I must acknowledge and applaud the wisdom it has shown. I am in total agreement that the Bill should not include inter-citizen rights. If rights between private citizens in any specific areas need to be addressed, the related provisions should be included in a separate piece of legislation.
If I had doubts that my fundamental concern with the maintenance of law and order could in any way be prejudiced by the Bill of Rights, I could not support the Bill. My position is very clear. I would not compromise the law and order in this territory for a Bill of Rights. Because of that basic fundamental position, I cannot support the amendments proposed by Mr Martin LEE.
Sir, I value the freedoms our citizens already possess. We must protect our existing values and our way of life. A piece of legislation like the Bill of Rights will not by itself maintain these for us. They will be maintained only by co-
ordinated and comprehensive efforts to maintain law and order in our community, to maintain our economic strength in the world arena and, of equal importance, to maintain good relations with China.
Sir, with these remarks, I support the Bill.
MRS LAU (in Cantonese): Sir, a total of nine meetings were held by the Legislative Council working group on the Chinese text of the Hong Kong Bill of Rights Bill 1990.
Following the usual practice of scrutinizing the Chinese text of other pieces of legislation, the group carefully compared the English and Chinese texts of the Bill to ensure that there are no discrepancies in meaning between the two texts.
The Hong Kong Bill of Rights Bill is composed of three parts. Part II is to en act the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong as domestic law. In so doing, it is of course necessary to avoid references to party states as they appear in the original text and insert wording suitable for local legislation. Apart from this, the provisions of the covenant should be fully adopted. Parts I and III of the Bill contain the preliminary and the exceptions and savings respectively. The former elaborates on the commencement date,
interpretation, effect on existing legislation, binding effect, and so on while the latter provides for the conditions under which the Bill of Rights does not apply in relation to the reservations and statements made on Hong Kong by the United Kingdom when it signed the ICCPR. Parts I and III are mainly for the purpose of incorporating the ICCPR as applied to Hong Kong into domestic law and most of the provisions therein do not affect the contents of the ICCPR.
After preliminary study, the group found that there were a lot of discrepancies in meaning between the English and Chinese text of the Bill, especially those provisions in Part II in relation to human rights. There are also terms and phrases which are unfamiliar to the people of Hong Kong and may be confused with the legal terms commonly used in Hong Kong. To cite an example, the word "shall" occurs in the English text a number of times. In common law, the word "shall " implies the meaning of "obligatory" or "mandatory". Its equivalent in the Chinese text, however, is " 應". As we understand, the Chinese character "應" means "應該" (should) without the implication of "必定要" (an imperative sense). Meanwhile, it is also not correct that the word "may" in the English text is rendered as "得" in the Chinese text.
Besides, terms such as "審判官" (judge) "裁判所" (tribunal) "良心拒絕兵役" (conscientious objectors) and "囚犯改造" (reformation) are not easily acceptable to the people of Hong Kong.
The views were reflected to the Administration by the group. Subsequently, it w
as discovered that there were actually two versions in respect of the Chinese te xt of the ICCPR. One is the "Treaty Versions" deposited in the archives of the United Nations in 1976. The other is the "UN Publication" as published by the C entre for Human Rights of the United Nations in 1988. The latter is used as the reference and basis for the Chinese text of the Hong Kong Bill of Rights Bill. Why are there two versions? As far as the group knows, even the United Nations Human Rights Centre cannot give a positive explanation on the matter. The centre, however, has advised that both texts are considered as authentic in the sense that they are both originated from the United Nations Official Records Translation and Edition Section. The centre also believes that any discrepancies which may exist between the two versions should be in style but not in substance. The Administration is of the view that the Hong Kong Bill of Rights should adopt the relevant provisions in the "Treaty Version" because it is the authentic Chinese text appended to the covenant ratified by the party states in 1976 and it is the only authentic Chinese text with legal effect internationally.
The group has carefully studied the details of the "Treaty Version" and found t
hat although some of the terms used in the "Treaty Version" were more accurate t han those in the "UN Publication", there were still a number of discrepancies be tween the Treaty Version and the English text and certain terms were unfamiliar to the people of Hong Kong. For example, the problem in relation to the word "s hall" and its Chinese equivalent "應" as mentioned above also exists in the "Tre
aty Version". Besides, the phrase "be represented before" in Article 9 of Part II which deals with human rights is rendered as "委託代理㆟到場申訴" in the Chin ese text of the Bill. The Chinese rendition seems to denote that the proxy is r equired to make representations "in physical presence". The English text, howev er, obviously carries a broader meaning. As regards the term "arbitrary arrest" in Article 5 in relation to human rights, it is rendered as "無理予以逮捕" in t he "Treaty Version" and "任意逮捕" in the "UN Publication". Apart from the fact that the term "任意" is more appropriate for "arbitrary", the Chinese term "無理" has been used as an equivalent for the word "unreasonable" in Article 25 of the "Treaty Version".
It may cause confusion when the same term is used to convey the meaning of "arbitrary". The English version of Article 12 which deals with human rights reads: "If subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby." The provision is rendered as "犯罪後之法律規定減科判罰者 從有利於行為㆟之法律" in the "Treaty Version", while the "UN Publication" reads, "如果在犯罪之後依法規定了應處以較輕的刑罰犯罪者應予減 刑". Obviously, the latter is more precise and comprehensible. There are also a number of wordings such as "具報" "國本" "處遇" "公設辯論㆟", and so on in the "Treaty Version" which are unfamiliar to the Hong Kong people.
The ideal approach is, of course, to make up the deficiencies in the "Treaty Ve rsion" by the merits of the "UN Publication". However, as the "Treaty Version" is the official and authentic text deposited in the archives of the United Natio ns, any amendment may be criticized as deviating from the Joint Declaration or contradicting the Basic Law. We must not forget that the aim of enacting the Bill of Rights is to implement the two international covenants as applied to Hong Kong through the domestic law. Thus the Bill of Right must strictly follow the texts of the international covenants. Considering the fact that the Sino-British Joint Declaration was signed in 1984 and the "UN Publication" had not been published until 1988, we from a legal point of view, can only adopt the "Treaty Version". In regard to the discrepancies in meaning of certain terms and phrases between the Chinese and English texts of the "Treaty Version", it will be left to the court to give suitable interpretation on their true meaning. Since both the English and Chinese texts are authentic versions, neither the law drafters nor the legislators are in a position to make arbitrary decisions on which text carries the most accurate meaning.
After careful deliberation and study, the group finally decided that all provisions in relation to human rights should fully adopt the "Treaty Version". Though after amendment all provisions will be originated from the "Treaty Version", both the Sino-British Joint Declaration and the Basic Law have referred to the ICCPR as "公民權利和政治權利國際公約". So this title must be mentioned in the Hong Kong Bill of Rights. In order to relate the substance of the "Treaty Version" yet with the "UN Publication" title, the group proposed that a new provision should be added to the Bill to make it clear that the title "公民權利和政治權利國際公約" mentioned in the Bill refers to "公民及政治權利國際盟約".
The group also proposed some amendments to Parts I and III of the Bill, so that the Chinese text can reflect the meaning of the English text more accurately. Clause
5 of the Bill, which deals with derogation of human rights, is worth mentioning. Although it is stated in the Bill that the clause is corresponding to Article 4 of the ICCPR, it is in fact redrafted by Hong Kong law drafters with the addition that measures should be taken in accordance with the law. The English text of this clause reads: "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed..... measures may be taken derogating from the Bill of Rights.....".
If the "Treaty Version" were adopted for the Chinese text of this Article, the wordings would have been, "如經當局正式宣佈緊急狀態危及國本 得……採取措施減免履 行依㆟權法案所負的義務". It is clearly stated in the English text that human rights may be derogated only when public emergency exists and its existence is officially proclaimed. However, the Chinese text of the "Treaty Version" can be interpreted as only the official proclamation and not the existence of public emergency is
required. The group considers that as the clause has been redrafted by law drafters, it is not necessary to fully adopt the wordings of the "Treaty Version" in the Chinese text. It is more important to set out clearly the conditions under which human rights may be derogated.
Sir, from the legal point of view, the amended Chinese text of the Hong Kong Bill of Rights Ordinance is acceptable. Admittedly, there may be inconsistencies between the English and Chinese texts, but such inconsistencies also exist in the "Treaty Version". The problem cannot be answered by legislators and has to be dealt with by the court in future.
Sir, with these remarks, I support the Hong Kong Bill of Rights Bill.
MR McGREGOR: Sir, like all other members of the Bill of Rights' ad hoc group, I have laboured long and hard over this essential legislation. I have tried to understand the legal ramifications and especially the very tricky relationship between the Bill of Rights and the Basic Law, also the changing circumstances and situation of Hong Kong. I believed for a long time that for a Bill of Rights to be effective here it would have to have paramountcy over all other legislation. It would also have to establish and protect all the human rights which are enshrined in the ICCPR. I could not envisage a Bill of Rights which would begin its legislative journey with serious imperfections and be open to subsequent change and abuse. I felt that this legislation should be the bedrock of the legal and moral protection
of the rights of all of the people of Hong Kong without fear, favour or discrimination, binding the Hong Kong Government and later the Special Administrative Region Government to an internationally recognized code of human rights and behaviour.
During the long and sometimes acrimonious discussions on this Bill, I came to the realization that perfection is not possible in Hong Kong's circumstances. We have existing legislation which seeks to protect the people against serious crimes and which has been effective in doing so but which is not wholly in accordance with the Bill of Rights. That legislation will have to be amended within a year and I can only pray that the amended legislation will not open up our society again to the scale of crime we had to endure before draconian measures were legally adopted.
I have argued strongly myself for the removal of inter-citizen rights from this Bill, basically because I could see considerable difficulties for the Hong Kong business sector and system in the application of Articles 14, 16 and 22. However, I am also seeking a government assurance that inter-citizen rights will be fully and separately protected by appropriate legislation.
It is also true that some of us who feel strongly about this matter have failed to get the Government to agree to set up a Human Rights Commission with statutory authority and the right to conduct investigations and to respond to complaints, along the lines of other similar institutions in advanced countries. I believe that a Human Rights Commission is certainly necessary as an integral element in human rights
protection in Hong Kong. What is now proposed is a committee and this will have to do the job until a commission can be set up, hopefully within a relatively short time.
I am also not sure about the ability of this Bill to protect women fully. The complicated situation of the indigenous women of the New Territories has not been clarified by this Bill nor has there been very specific discussion on this contentious issue by members of the ad hoc group. I hold the personal view that all human beings are born equal before the law and in the sight of God. They must remain so and should not have equal rights removed by custom or regulation. I hope the courts will
eventually ensure that this principle prevails.
The interpretation of public authorities could, I believe, cause legal problems and it would have been better in my view for there to have been a list of such bodies attached to the Bill as has been done with other legislation. I think this should be considered as early as possible.
The lack of any protection against changes in this legislation after 1997 is the most serious flaw, in my view, in the Bill of Rights. By its nature, the Bill should be paramount and should ensure that the rights it confers on each and very citizen of Hong Kong are sacrosanct so that the people of Hong Kong can feel secure against violation of their basic human rights.
This Bill has not such characteristic and is therefore, in my view, seriously flawed. Nevertheless, it represents the best we can do in the circumstances of Hong Kong and, given several years of active operation during which its provisions will be tested fairly and fully in the Hong Kong courts, we shall have a body of legal opinion, system, and decisions which should ensure that there will be no need for change after 1997.
I should like to congratulate the convener of the ad hoc group which considered this Bill, Mrs Selina CHOW, for her leadership, patience and skill in bringing the Bill into law. She has had a most difficult job to do and she has done it successfully and with good humour.
Sir, I support the Bill.
MR PETER WONG: Sir, I support the Bill as an essential safeguard of our inherent basic human rights in the years to come. As a shield to guard against excesses of governments, it is an appropriate legislative measure. But there are real dangers that it can be turned into a sword to achieve individual aims and oppress others in the name of public good and personal freedom. We must guard against such abuse of power granted by the Bill. We must ensure that law and order is maintained to upkeep Hong Kong's stability and well-being.
For those who contemplate using this Bill as a sword to fight for their own vested interests, I must warn that this sword can be doubled-edged. Use it wisely, the world will applaud. Use it selfishly, the world will unite to put us down.
With these words, I support the Bill and do not support Mr Martin LEE's yet to-be introduced amendments.
MR MARTIN LEE: Sir, I apologize for not having been here when you were about to call upon me earlier, but I suppose, like the Bill of Rights, it is better late than never.
Sir, the passage of the Bill of Rights today will mark a landmark in the history of Hong Kong. In passing the Bill of Rights, we will join the community of modern nations that has accepted that all people have inherent rights that their government cannot take away or abridge except under a very limited range of circumstances. With the approach of 1997, we, the people of Hong Kong, are entering into an era when we will have to look after our own civil and political rights rather than relying on Great Britain.
We must remember that the Bill of Rights does not offer an ironclad guarantee of all our rights. Rather, the rights enshrined in the Bill only establish a baseline that over 80 countries around the world have agreed to be the absolute minimum that human beings are entitled to have. Whether this most basic level of human rights protection is upheld in Hong Kong will depend ultimately on how far we as a community are prepared to commit ourselves to making certain that the Bill will work in practice. In addition, the passage of the Bill vividly reminds us that the most basic of all rights and the right which underpins all other rights -- that is, the right to elect democratically our own government -- is still denied to the people of Hong Kong.
There is no question that the Hong Kong Government deserves credit for the introduction and passage of this Bill, for the Bill has the potential to be a very positive influence upon Hong Kong. In addition, I am pleased that the Administration and the ad hoc group have been able to make several improvements to the draft Bill presented to this Council last March, in particular, the amendment to clause 6 on remedies.
At the same time, however, the Bill as it stands has several flaws that need to be corrected. Even more important, I am deeply disappointed by the lack of leadership on this issue provided by the Government and by the Government's unchanging hostility to protection of fundamental human rights in practice. Since the introduction of this Bill to the Legislative Council almost a year ago, the Government has been
virtually silent on the significance of this Bill. Though the passage of the Bill today marks a landmark in the legislative history of Hong Kong, many citizens still are not even aware of it.
In addition, the Government has demonstrated little concern as to how the rights
in the Bill will actually be protected in practice. I am afraid, Sir, that the present attitude of the Government is to treat the Bill of Rights and human rights in general as an unwanted albatross that has been forced around its neck, something that should be ignored whenever possible.
Two years ago, when the Government first announced its intention to enact a Bill of Rights, I had hoped that it would fundamentally alter its attitude towards its human rights obligations under the International Covenant on Civil and Political Rights. Yet, I regret that nothing has changed. For 15 years, the ICCPR has applied to Hong Kong; yet the Government has taken virtually no action whatsoever in these 15 long years to bring its laws and practices in line with this international human rights baseline.
For years, the ICCPR was not publicized, and until very recently, it was not even available in our public libraries. The Government made no efforts whatsoever on public education about human rights. In its reports to the United Nations Human Rights Committee, the Government steadfastly maintained that all laws in Hong Kong were fully consistent with the ICCPR; yet now when the ICCPR is to be implemented through the Bill of Rights, today the Government calls for a freeze period to revise laws that it admits at least by implication to be in violation of the ICCPR.
What is most distressing is that this cavalier attitude has grown worse in the two years since the Government announced its intention to enact the present Bill . During this time, we saw the shameful letter of the political adviser to the New China News Agency in October 1989, in which he stated the Government was willing to compromise the rule of law in deference to good relations with China. And, last year, we saw the selective prosecution of the five leaders of the United Democrats of Hong Kong -- although, unfortunately, I was not included -- under the ludicrous charge of having used a loudhailer without the prior written consent of the Commissioner of Police -- a prosecution so offensive that it was thrown out of court in January of this year by the Chief Justice on appeal. When, Sir, is this attitude going to change? One place that would be appropriate to start would be to amend immediately the proposed Summary Offences (Amendment) Bill, so that internationally accepted political activities in the form of fund-raising in public will no longer be banned contrary to the Bill of Rights.
The area in which the attitude and commitment of the Government will be most clearly put to test is the area of access to justice for citizens who feel that their
rights under this Bill have been infringed. In other words, will citizens be really able to have their rights under this Bill enforced by law? This fundamental right of legal access is enshrined in Article 2 of the ICCPR itself, in which signatories to the Covenant undertake "to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violations has been committed by persons acting in an official capacity."
I am afraid, however, in the context of our current legal system that many citi zens will have no true access to the rights in this Bill and that they will be unable to obtain the effective remedy that they are entitled to. Take the case of a filmmaker who finds that his documentary has been censored for political reasons. Under the Bill, he would have a right to seek to have the censor's decision overturned in the courts on the grounds that such censorship is in violation of the right to free
expression in Article 16. If the filmmaker wished to undertake such an action, he would first have to engage lawyers. But there is the intimidating prospect that, if he lost in his action, he would have also to pay for all the legal costs of the Government. Faced with such a daunting financial risk, it is highly unlikely that the filmmaker would be willing to undertake the suit at all and would be forced in practice to drop it. He would thereby be deprived of any effective remedy for the Government's violation of his right to free expression.
Sir, the establishment of a human rights commission has the support of the ad hoc group as well as all the non-government Members or most of the non-government Members of this Council who had adopted recommendation of the ad hoc group in an In-House meeting earlier. In addition to vital educational and advisory functions, this human rights commission would have the power to mediate and arbitrate in human rights disputes. If the commission were given this essential arbitration power, citizens who do not have the money to initiate lawsuits would still have access to an effective legal remedy. The establishment of such a commission would also save the Government a considerable amount of money, since cases could be resolved by the commission in an inexpensive manner.
The establishment of a human rights commission with the power to arbitrate has been a fundamental aspect of human rights protection in Canada, Australia, and Europe. In all of these countries, the human rights commission has the power to arbitrate in human rights matters between citizens and the government. Hong Kong should not be an exception to this standard international practice, if the Government truly wishes that human rights in Hong Kong are to be protected to the same degree they
are in other modern nations. I understand, of course, that no government likes to be taken to the court and no government likes to be told that its laws and practices violate human rights; yet the essence of a Bill of Rights is that it is there to protect against inevitable intrusions by the government on the rights of individual citizens. That is why all these other governments have established human rights commissions -- so that citizens can have an effective means of redress on matters that the
community believes to be of fundamental importance.
Hence, I urge Honourable Members of this Council to persist in their demand for the establishment of a human rights commission with arbitration powers. We must not allow ourselves to be forced by the Administration into giving up what we know to be right and vital. As for the Administration, I hope the Attorney General will inform this Council why the Government is unwilling to abide by the international practice and accept the establishment of a human rights commission similar to the ones in Europe, Canada, and Australia.
Even in the absence of a human rights commission with arbitration powers, there are two other steps worthy of our immediate consideration. The first is to give a discretion to the Director of Legal Aid to grant legal aid to an applicant with a meritorious human rights claim, even though he or she may not pass the rigid means test. The second is to provide that costs would not be awarded against plaintiffs who have failed in actions under the Bill unless the court believes the actions to have been brought frivolously, vexatiously or maliciously. Both of these measures are very worthy of our consideration; and I hope that right after the passage of this Bill the legal profession, Members of this Council and the Administration can work out together the most appropriate method of solving this practical problem.
Until this happens, I call upon the Attorney General to make a pledge in this Council today that the Government will not seek an order for costs against any unsuccessful plaintiff in a claim under the Bill of Rights unless the claim be frivolous, vexatious or malicious. For, to seek costs against such citizens is to penalize them for bringing actions, whereas the Government ought instead to be encouraging them to do so, as in Canada, Australia and in some different way, the United States. I hope my honourable colleague the Attorney General will make that pledge today.
In short, I cannot put enough emphasis, Sir, on the point that a satisfactory resolution of the matter of access to justice in human rights issues is of the highest
importance. I realize that making justice available to our citizens will force the Government to spend money. Yet, we must ask ourselves: how serious are we about protecting the rights of our citizens, especially now in the context of 1997? If we are serious, we must be prepared to commit the necessary resources, just as all other countries with Bills of Rights have done, in order to give citizens effective access to justice and to develop a body of case law around the Bill of Rights that will endure beyond 1997.
While the question of access to justice is the most important, there are four other areas I would like to touch on very briefly: the question of entrenchment, inter-citizen legislation, the definition of public authorities, and the long-term status of the ICCPR. I will address the subject of the freeze period during the Committee stage later this afternoon.
Supremacy
During the discussions of the ad hoc group, the Bar Association suggested that the Letters Patent be amended by the addition of an article identical in terms to Article 39 of the Basic Law, which provides for supremacy of the ICCPR and therefore the Bill of Rights after 1997 in effect. I fully support this idea. For, it is imperative that our courts have the earliest possible opportunity to interpret this Article and determine whether it affords supremacy to the relevant provisions of the ICCPR as enshrined in the Bill of Rights. If yes, all well and good. But if not, then we will urgently seek to have Article 39 amended. Since, moreover, a body of case law built on an article in the Letters Patent which is different from Article 39 of the Basic Law may not be followed by the courts after 1997, it is imperative that the new article in the Letters Patent be identical to Article 39 of the Basic Law so that there will be certainty in the case law. I hope that this Council can persuade the British Government to change its mind.
Inter-citizen rights
This subject was hotly debated during the meetings of the ad hoc group. Unlike my honourable colleague Mr ARCULLI, I am disappointed that the majority of the ad hoc group and the Government finally agreed to eliminate all inter-citizen rights from the Bill. The failure to include inter-citizen rights in the Bill adds urgency to the need to draft legislation to protect against discrimination and invasion of privacy. Just yesterday, I received a complaint from OMELCO from two members of the
Indian community in Hong Kong, who were recently denied entry to a bar in Central on the sole grounds of their race. This type of racial discrimination is utterly unacceptable and morally repugnant, and I call on the Government to come forward with anti-discriminatory laws that will prevent it. Similarly, the Government has
delayed for too long any action to implement the United Nations Covenant on the Elimination of All Forms of Discrimination Against Women. And I am sure I have the support of all my honourable lady colleagues and most of my honourable gentlemanly colleagues on this point.
Definition of "public authorities"
As the Law Society has correctly pointed out, the Bill suffers from a failure to define what is meant by the term "public authorities" in clause 7, with the result that many organizations would wonder whether they are effected by the Bill of Rights. What the Administration should do is to list all applicable public authorities in a schedule. Such a schedule can be found, for example, in the Prevention of Bribery Ordinance. The omission creates unnecessary confusion, and I call upon the
Government to rectify the problem as soon as possible.
Future of the ICCPR in Hong Kong
During the course of the ad hoc group meetings, many organizations expressed their opposition to the inclusion in the Bill of a permanent category of Exceptions and Savings. When Britain lodged a number of reservations at the time of its signing the ICCPR in 1976, these reservations were not supposed to deny human rights in
perpetuity. Yet, now the Government here wishes to make those reservations permanent and even enshrine them in this Bill of Rights. This is totally unacceptable. I call on the Government to work immediately towards lifting the reservations and to hold consultations with the PRC Government to persuade the PRC of the necessity of removing these human rights loopholes. In addition, the Joint Liaison Group should make
certain that Hong Kong will continue to make reports to and be monitored by the United Nations Committee on Human Rights after 1997.
In conclusion, I must stress that if the Bill of Rights is to serve as a cornerstone of human rights protection both now and in the future, we must make sure that these rights do not become rights on papers only, but real, enforceable guarantees. And we can only do this when our community as a whole is prepared to make a personal and financial commitment to making the Bill work in practice; and we must be prepared
to spend whatever money that is necessary to ensure that all our human rights will be protected under the rule of law. For only then can we carry out the obligation cast upon us, that is, to recognize that certain rights are fundamental to us as human beings and must never be taken away from us if we are to remain human beings.
ATTORNEY GENERAL: Sir, since its introduction this Bill has been the subject of intense scrutiny and comment as evidenced by the debate here this afternoon. The ad hoc group has met on numerous occasions, has received representations from many sections of the community and has pressed the Administration firmly and constructively about aspects of the Bill which have caused it concern. The Bill has received careful and comprehensive attention by Members of this Council. For that, this Administration, and no doubt the community at large, are deeply indebted. The enactment of this Bill of Rights will constitute a statement in one instrument of fundamental rights and freedoms, justiciable before an independent judiciary, and it is a signal of the importance attached by this Administration and by Members of this Council to those fundamental freedoms that so much time has been spent on this measure.
As a result of the extensive discussion and debate to which I have paid tribute , there will be moved this afternoon a number of Committee stage amendments. They reflect by their number and nature a wide variety of concerns. Some are put forward to allay concerns as to clarity of purpose. Others are broader, reflecting more
fundamental worries. No doubt the two with the most impact relate, first, to the question of inter-citizen rights and, second, to the proposal to freeze, for a while, the effect of the Bill of Rights on our existing laws -- there are a small number of them. The Administration supports the amendments to be moved later this afternoon by Mrs Selina CHOW in respect of these two aspects, and the Chief Secretary will outline the reasoning behind that support. It falls to me, Sir, to address those Committee stage amendments to be moved by the Administration and to comment, if I may, on some of the amendments to be proposed by Members and on some of the comments made more generally this afternoon.
As to the amendments initiated by the Administration, I draw the attention of Members first to clause 2(3) of the Bill: the clause which stipulates, for the benefit of the courts, the purpose of the Ordinance.
It is proposed that clause 2(3) be amended by replacing the phrase "the purpose
of this Ordinance is to implement further the International Covenant on Civil a nd Political Rights as applied to Hong Kong" with this expression "the purpose of this Ordinance is to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong, and for ancillary and connected matters." We feel that, Sir, the phrase "to implement further" is not, in all the circumstances, the best phrase to describe the purpose of the Bill. A similar amendment to the long title is also proposed. The International Covenant as applied to Hong Kong has hitherto been implemented in Hong Kong through the common law, legislation and administrative measures. That being so, the text of the Preamble might create a misleading impression that a Bill of Rights, as a matter of law, is required to implement the Covenant here. The Administration therefore proposes to delete the Preamble. None of these amendments is intended to change the substance, the underlying purpose, of the Bill.
Members will have noted that clause 4 provides that all future legislation is to be construed, so far as possible, as being subject to the Bill of Rights. The use of the phrase "subject to" has given rise to concern that thereby the Bill of Rights will attain a status in law as some kind of superior constitutional instrument, competing perhaps with the Basic Law. That was not the intention. To make this more clear, the Chief Secretary will move an amendment to clause 4, the effect of which will be to provide for interpretation to be consistent, if possible, with the Covenant. Such a clause will, we believe, sit well with the provisions of the Joint Declaration and the Basic Law.
Clause 6 is the remedies clause. There was some concern that the clause as presently drawn did not make clear the circumstances in which an action involving a breach of the Bill of Rights might be brought, and in particular that it was intended to permit an action where the sole complaint might be a breach of the Bill of Rights. The amendment to clause 6 which is proposed by Members will serve to clarify the fact that there are two basic situations where a remedy may be granted under the Bill. The first is where an action is brought relating solely to a violation of any one of the Articles in Part II of the Bill. The second situation is where a violation is relevant in the course of proceedings, but there is no action based solely on the Bill of Rights.
I turn now, Sir, to the question of costs. It has been urged upon me this afternoon that in litigation involving the Bill of Rights I should refrain, in cases where a plaintiff is unsuccessful in an action against the Government, from seeking
an award of costs in the normal way. I have to say that that proposition would cause me very great difficulty.
Sir, I should start by explaining the background. The long established rules of procedure applied in our courts are that the courts have full discretion in mak ing orders as to payment of costs. And the normal rule is that costs follow the event. If you win, you get your costs. If you lose, you have to pay your oppo nents. That is a long standing rule of procedure well understood by the courts, by lawyers and those who practise in the courts. If I were to be asked to acced e to the proposal put to me this afternoon, I would be departing from well-estab lished procedures in a situation where it is not clear to me that a case has bee n made out for so doing. The proposal, if I understood it correctly, would mean that if a case was barely arguable, but not frivolous, there would be no costs. The costs would have to be borne by the taxpayers. Members might like to refle ct on that with me that it might encourage nuisance litigation and that it might encourage publicity-seeking litigation that has no underlying real purpose, in
other words, it would encourage litigation that has no other purpose than to see k publicity. The rule as to costs is a well-founded rule designed to ensure that litigation is properly brought and soundly brought. That, I would suggest, is a very good reason founded in public policy for adhering to the rule. I would add that many of the rights in the Bill of Rights are already protected by existing legislation in the common law and in actions as against the Government and public authorities. It would be a very odd situation indeed if the same breach were treated differently, simply because an action were brought under the Bill of Rights. Legal aid is available for persons with limited means. If a legal-aided person is unsuccessful, liability for costs would be limited to the amount of contribution, if any, that that person is liable to pay. If I understood it correctly, the waiver of costs that was urged upon would apply even to very wealthy litigants who, if unsuccessful, would be subsidized by the taxpayers. Having regard to all those circumstances, Sir, I repeat that I have great difficulty in seeing how I could possibly accede to the invitation that was given to me this afternoon.
Upon enactment, it will be for the courts to interpret and apply this Ordinance. Those in practice before the courts will no doubt find a wealth of learning and existing case law, not only in connection with the International Covenant itself, but also from decisions on other multi-lateral conventions and other charters of rights. For the rights enumerated in the International Covenant and, therefore, in our Bill of Rights, are common to most such instruments. That should come as no
surprise, since they are but a list of fundamental freedoms. They echo those principles developed in the common law world, to which Hong Kong belongs.
Sir, I support the motion.
CHIEF SECRETARY: Sir, today's debate marks the culmination of detailed and prolonged consideration of legislation the introduction of which you, Sir, signalled in the autumn of 1989. It is legislation which has been subject to intense consultation, first with the publication of the White Bill in March 1990, and then with the
introduction of the Bill to the legislature in July 1990. Since July last year, members of the ad hoc group have been busy considering the Bill, its broad approach and its fine details, receiving representations and discussing its views with the Administration. The amendments to be moved during the Committee stage reflect the results of those discussions and of the full consideration given by the Administration to representations received since the Bill was introduced.
Sir, I am most grateful indeed to Mrs Selina CHOW and to the ad hoc group for the vital task which they have undertaken with such diligence. That, and the speeches by Members this afternoon, reflect the considerable interest of the community in this important piece of legislation.
The Administration has paid careful attention to the contentions of disparate groups: including those eager for a broader statement of rights; and those who have argued for limited application; those concerned lest the Bill of Rights be given a status superior to our laws, competing in prominence with the Letters Patent, or after 1997 with the Basic Law; and those, on the other hand, who point to the needs for special status normally given to instruments of this nature. We are aware too that there are those who say that such a Bill is unnecessary, and those who on the other hand complain that it is long overdue and in any event is encumbered by reservations and by a freeze.
Sir, in answer to these competing views, I would like to address the background and our objectives.
Since 1976, we have had an obligation in international law to give effect to the International Covenant on Civil and Political Rights. That obligation existed before the Joint Declaration and long before the promulgation of the Basic Law.
Although it is possible to give effect to the International Covenant through various laws, the international obligation, highlighted by the Joint Declaration and the Basic Law, is more readily given clear effect by a law of this kind. These two instruments have highlighted the international obligation. And indeed the Bill of Rights does no more than implement in readily accessible form those obligations as a clear part of our domestic law.
But there has also been growing in the community the desire for a law of this kind. That momentum came at a time when representative government was developing and when the community was giving greater voice to those aspirations which are common to all societies in the throes of such evolution. A Bill of Rights was a natural consequence of those aspirations.
The Administration had a number of key objectives:
First, to ensure that the Bill of Rights reflected the provisions of the International Covenant as applied to Hong Kong; Secondly, to ensure that the Bill of Rights would be a practical and effective law;
Thirdly, to ensure that legitimate concerns were fully taken into account;
Fourthly, to ensure that the Bill of Rights was in full compliance with the Joint Declaration;
Finally, to meet apparent concerns about the status of the Bill of Rights, particularly as regards the Basic Law.
To satisfy the last objective, we have made sure that the Bill has, as a matter of law, a status the same as other Ordinances, and we will introduce certain amendments at the Committee stage to make that clear. We have ensured that the substance of the Bill is fully consistent with the ICCPR as applied to Hong Kong. That is
particularly important, for both the Joint Declaration and the Basic Law make specific reference to that Covenant, requiring its continued application beyond 1997. And we have tried to ensure that there are no procedural clauses which run the risk of conflict with the Basic Law.
It is equally important to appreciate the manner in which this Bill fits into a
wider mosaic which will serve to provide an effective safeguard for civil right s. The scheme of safeguards operates in three phases. The Bill of Rights itsel f will have an impact on existing laws. Existing laws which are inconsistent wi th the Bill of Rights will be amended or repealed by it to the extent of any suc h inconsistency. This is a normal rule of interpretation as to the effect of la ws on earlier laws. This rule is made clear by clause 3(2) of the Bill. As to
the future, I announced in July 1990 that Her Majesty's Government intended to amend the Letters Patent to provide that no law shall be made after such amendment that restricts the rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with the International Covenant as applied to Hong Kong. I can now tell Members that Her Majesty's Privy Council has approved such an amendment. That amendment will come into operation at the same time as this Bill of Rights. The amendment is a reflection of a similar provision, namely Article 39, of the Basic Law. Therefore, new laws enacted hereafter cannot contravene the Covenant. That position is ensured before 1997 by the amended Letters Patent. After 1997 it is quite separately ensured by Article 39 of the Basic Law. So, as a matter of domestic law the machinery will soon be in place whereby the rights in the Covenant as applied to Hong Kong will be well ensconced in our system.
There has been much comment during the consultation process (and indeed in today's debate) about the provision, now in clause 14 of the Bill, which has become known as the freeze provision. There has been pressure against any such provision, even though there is ample precedent for it elsewhere. The inclusion of such a provision has always been viewed by the Administration as a prudent measure, a responsible course of action to take to avoid operational vacuums, particularly in the sphere of law enforcement, in the event of a finding by the courts having the effect of striking down a key provision of legislation.
The Administration took full note of the ad hoc group's unhappiness with the idea of a blanket freeze for a year, renewable for a further year, on all existing legislation. We have now identified those areas where operational vacuums of this kind might be particularly unfortunate, and with the strength of concern evident over the issue, the Administration has decided to accept the ad hoc group's recommendation for a selected freeze of Ordinances listed in a Schedule. Should that recommendation be adopted, those Ordinances alone will be immune from the operation of the Bill of Rights for one year, subject only to an extension for a further year in respect of any or all of the listed Ordinances, by approval of this Council. Whether any particular provisions of our law turn out to conflict with the Bill is ultimately
a matter for our courts, and inclusion of an Ordinance in the Schedule does not mean that the Ordinance or any part of it is in fact in conflict.
It has been said that we have had long enough to ensure that our laws comply with the Covenant and, further, that we need to ensure that the courts may begin as soon as possible to develop their Bill of Rights jurisprudence. We have indeed been long aware of our international obligations and they have not been ignored. The plain fact is that the ability of the courts to address these obligations directly requires that we seek to make doubly sure that in certain core areas we will not be found wanting. The measure is a precautionary one. The period is short, and the Ordinances listed are few. The Administration has moved considerably from its original position, in deference to the strength of views expressed by the ad hoc group and others, and I would urge this Council to adopt the recommendation of the ad hoc group.
Sir, whether the Bill of Rights should govern obligations between individuals is a difficult and controversial subject. In the light of concerns expressed by the community during the public consultation process, the Administration agreed, when the Bill was introduced into this Council, to defer the application to the private sector of Article 14, that is, the right to privacy.
Nevertheless, general concern, especially that of the financial and banking community, remains about the legal uncertainty created by applying the Bill to the private sector, and it has been emphasized that certain areas of conduct between individuals and private bodies covered by the Bill lend themselves to detailed legislation, rather than to the broad provisions of certain Articles of the International Covenant. The ad hoc group have expressed their wish for some solution to be put forward to allay such concern.
The Administration accepts that there is nothing in the Covenant which requires State Parties to impose obligations upon, and enable claims to be made against, individuals through the vehicle of a Bill of Rights. Clause 7 of the Bill is unusual and Bills of Rights usually apply only to Governments and public authorities. In these circumstances and in view of the depth of concern expressed, the Administration has re-examined the need for and desirability of providing for inter-citizen rights under the Bill of Rights. We note particularly that fears about the uncertain effects of the Bill of Rights could undermine the very confidence that the Bill was designed to strengthen.
There are two broad options which might address this concern: either to defer the application of those particular Articles most likely to affect inter-citizen relationships, or to take out all direct inter-citizen rights from the Bill of Rights. We prefer the latter approach. It is tidier, and will avoid the uncertainty as to which aspects of conduct are covered and which are not. It also meets the main
objective of any Bill of Rights, namely, to cater for violations of fundamental rights by the Government and public authorities. We therefore agree to exclude from the operation of Bill of Rights all inter-citizen rights and obligations, and that the Ordinance shall bind only the Government and all public authorities.
Sir, the question which has, quite naturally, followed the decision to exclude inter-citizen rights concerns the alternative steps proposed to cater for the protection of infringement by individuals of the rights of other individuals and some Members have made reference to this today. In the sphere of civil liberties, the categories of private infringement which call for particular attention in most jurisdictions are those relating to privacy and discrimination.
As to the former, the Law Reform Commission is already well advanced with its comprehensive study of privacy, with a view to making recommendations for detailed legislation. The Administration has already started consideration of the question of discrimination in connection with its study on the application of the United
Nations Convention for the Elimination of All Forms of Discrimination Against Women. The legal, social and economic implications of detailed anti-discrimination legislation are complex and they need to be carefully studied before mature decision can be taken. We would wish to reach an informed policy position on the basis of such detailed studies.
Sir, many Members have referred to the establishment of a Human Rights Commissi on and we have studied most carefully the Bill which has been put to us. When i t was still our intention to retain inter-citizen rights in the Bill, there were suggestions that such a Commission might act as a filter to stem the flow of in ter-citizen actions in the courts. The perceived role was that of arbitration,
mediation, investigation and perhaps a right to enforce decisions. Indeed the A dministration took the view that in order to perform the envisaged role effectively, such a Commission would have to have powers to provide effective remedies. The establishment of such a body, were it to perform effectively, would of course have had financial implications and one would wish carefully to determine the nature of its composition, bearing in mind always the desirability of adhering to the type of
machinery recognized by our present system of law. These difficulties aside, however, the fact is that a decision has been taken to exclude inter-citizen rights from the Bill, so that the case for establishing a Human Rights Commission with the arbitration or mediation or decision making role envisaged is considerably weakened. I have indicated that the question of protection of rights from infringement by individuals will be considered. Whether any particular mechanism for dealing with those issues will prove desirable should await that consideration.
Sir, the Administration does, however, perceive the need for a body whose function it would be to further human rights education and many Members have referred to the need for it this afternoon. Members may be aware that the Committee on the Promotion of Civic Education has in recent years pursued an active programme to promote as one of its major themes public awareness of the rule of law and human rights protection. However, there would be benefit in the concentration of expertise in this important area, which would also serve to under-score the importance which the Administration attaches to the protection of human rights. We believe that the public education role of such a body would be important for the Bill to produce the desired impact. I can confirm that we are now considering the establishment of such an advisory
committee.
There has been reference today to the International Covenant on Economic, Socia l and Cultural Rights, and to the fact that the Bill does not incorporate provis ions of that Covenant. There were several reasons for not taking that step. Th e rights enshrined in the ICCPR and those in the ICESCR are different in nature
and it was in recognition of this difference that the rights were included in tw o separate Covenants. Many of the rights in the Economic Covenant are not capab le of precise legal definition and States Parties are only obliged to realize the rights and freedoms contained in that Covenant progressively, according to available resources. That said, Sir, in Hong Kong many such rights have already been taken care of by our existing social service programmes and legislative measures. Furthermore, we are satisfied that many of the civil and political rights which are made justiciable in the Bill of Rights will indeed protect the ICESCR rights and freedoms, albeit indirectly. I agree with Mrs Selina CHOW that selection of rights from the ICESCR to be included in the Bill of Rights would have entailed extensive consultation and prolonged debate about which rights should be included and which excluded and that this would have delayed significantly the enactment of this Bill. I do have to take full note however of the concern by Members that the Administration should address further the question of rights in the Economic and Social Covenant.
Sir, the enactment of this Bill represents further evidence of the Administration's commitment to the preservation of human rights in this territory. I say "further evidence" for there is, I believe, cause to recognize the fact that our record in the field is one of which we should be readily proud. It has been suggested today that this Administration is regressive when it comes to civil rights. That is an allegation that does not bear rational examination. Our human rights record is a good one, and it is progressive and there is ample evidence to show it.
Sir, I remind those who may be sceptical of some key current or recent examples: the present preparation of a Torture Bill, to give effect to the Convention against Torture; the abolition of judicial corporal punishment; the repeal of part of the Education Ordinance dealing with political activities in schools; the proposal to amend our laws on homosexuality; the examination by our Law Reform Commission of police powers of arrest, detention, search and seizure, and the laws relating to illegitimacy and to the protection of privacy. This is a catalogue, I suggest, of an administration well committed to the safeguarding of human rights. And to that catalogue, we now add a Bill of Rights for Hong Kong. Sir, it is vaguely absurd to suggest that the Administration regards this Bill as something of an albatross around our neck. We, after all, took the initiative to introduce it. We have worked closely with the ad hoc group to improve it and we will vote for it enthusiastically today.
Sir, I referred at the outset to the key objectives which we have had to bear in mind in the drafting of this Bill of Rights. At the end of the day, I am satisfied that it meets those objectives, and in particular that it faithfully incorporates relevant provisions of the International Covenant on Civil and Political Rights, as that Covenant is applied to Hong Kong.
It would be as well to remember at all times that that Covenant is the international community's statement that there are certain standards to which we should adhere. But, more than that, the standards itemized in the Covenant are merely the minimum standards. Complaints that the Bill of Rights may impact adversely on our ability to take this step or that are therefore tantamount to assertions that we should not adhere to those minimum standards.
Sir, concerns have, I know, been expressed that the Bill of Rights might have an adverse effect on the efficiency of enforcement agencies. I would point out that, regardless of the Bill of Rights, Hong Kong has an international obligation to ensure that its laws are in conformity with the International Covenant. The Administration
is very conscious of the need to maintain the efficiency of the law enforcement agencies. But we are satisfied that the Bill of Rights will not diminish operational efficiency in this or in other areas. The freeze period in relation to the schedule of Ordinances is designed to allow sufficient time to examine these Ordinances affecting law enforcement and, should it prove necessary, to replace provisions so the operational vacuums do not arise, and which provisions are at the same time consistent with the Bill of Rights and, consequently, with the ICCPR.
As I pointed out in moving the Second Reading of the Bill, there are a number of countries where law enforcement agencies have to operate within constitutional guarantees for basic human rights and freedoms. These are highly advanced and civilized communities where law and order is maintained.
Sir, we are not embarked on some unique adventure. There are many jurisdictions, particularly in the common law world, with their own charter of rights. It is a feature of almost all Commonwealth jurisdictions. The value of such a law is, I believe, clear: it serves as a yardstick, a focal point, and it is a vital educative tool, bringing home to the consciousness of private individual and public official alike the importance of essential rights and freedoms, which in a free society we are always in danger of taking for granted.
Sir, I support the motion.
Question on the Second Reading of the Bill put and agreed to. Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1). 5.08 pm
HIS EXCELLENCY THE PRESIDENT: The Council still has a good deal of business to get through this afternoon today. Members would, I am sure, welcome a break at this point.
5.40 pm
HIS EXCELLENCY THE PRESIDENT: Council will now resume. We will continue with Second
Reading debates.
ARBITRATION (AMENDMENT) BILL 1991
Resumption of debate on Second Reading which was moved on 22 May 1991 Question on the Second Reading of the Bill proposed, put and agreed to. Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
CLUBS (SAFETY OF PREMISES) BILL 1991
Resumption of debate on Second Reading which was moved on 8 May 1991 Question on Second Reading proposed.
MR CHUNG: Sir, the Clubs (Safety of Premises) Bill 1991 seeks to establish a certification scheme to be administered by the Secretary for Home Affairs. The main purpose of the proposed certification scheme is to enable Government to impose necessary requirements and standards regulating the fire and structural safety of club premises. The Bill was introduced into the Legislative Council on 8 May 1991.
Following the raising of an oral question on karaoke centres by my honourable friend Mrs Elsie TU at the sitting of this Council on 8 May 1991, Members decided to form an ad hoc group to consider, among other things, whether karaoke centres could be included for control under the Bill.
In examining this area in greater detail, the ad hoc group noted that since most of the karaoke centres would either serve food and alcoholic drinks or were being run as clubs, they were, or would be, subject to legislative control in one way or another insofar as fire and structural safety were concerned. As for noise control and other social problems which might be brought about by karaoke centres, Members agreed that they were strictly speaking outside the original scope of the Clubs
(Safety of Premises) Bill 1991. After discussion, it was agreed by Members that a
new legislation to enable specific control on karaoke centres should be considered separately in future. And in the meantime, the Administration should continue to closely monitor the operation of such centres.
As regards the present Bill itself, the ad hoc group had made a few points:
(a) first, despite the definition of clubs provided in the Bill, it should be made clearer as to which type of premises the legislation intended to control and regulate;
(b) second, a reasonable period of time should be given for the necessary modification and alteration works to existing club-houses to comply with the requirement imposed; and
(c) third, a few minor amendments to the Chinese text of the Bill were necessary to improve its clarity.
In response to the first two points made by the ad hoc group, the Administration confirmed that the Bill was targeted primarily at proprietary or sham clubs as opposed to other genuine social clubs such as kai fong associations and labour unions which were normally non-profit making in nature. Members were also assured by the
Administration that a reasonable period of time, depending on the circumstances and merits of individual cases, would be given if modification works to club-houses were necessary. The Secretary for Home Affairs will no doubt clarify these two points in his speech later.
Sir, with these remarks, I support the Bill.
SECRETARY FOR HOME AFFAIRS: Sir, I am most grateful for the support that Mr CHUNG Pui-lam and members of the ad hoc group have given to this Bill.
When I introduced this Bill to this Council on 8 May, I said that the certification scheme would be implemented in phases, and I can confirm that the first phase would be targetted at proprietary or sham clubs which use their club-houses as ordinary business premises. In response to the ad hoc group's request, I will elaborate on this scope of control and the various types of clubs to be affected.
At present, clubs are generally registered in two ways. They may be formed under the Societies Ordinance Chapter 151. Exemption from registration under this Ordinance is given to trade unions, credit unions, owners' corporations, and mutual aid committees.
Clubs may also be formed under the Companies Ordinance Chapter 32. They usually take the form of a company with liabilities limited by members' guarantee.
The scope of control will embrace all these clubs which have club-houses. However, the certification scheme will, first of all, be implemented against proprietary or sham clubs which are usually a purely commercial undertaking in which the so-called members are no more than customers of the proprietor. This form of club is popular with operators of mahjong parlours, eating establishments, and karaoke centres in order to avoid licensing control under other Ordinances.
Non-proprietary clubs will be temporarily exempt from the certification scheme. They are, however, required to register with the authority for a certificate of exemption.
The ad hoc group has expressed concern about the time to be given to existing club-houses to upgrade their safety measures and to regularize any deficiency in compliance with the statutory standards. I would like to emphasize that a reasonable and adequate period of time will be given, depending on the size and extent of the improvement works. Furthermore, any aggrieved club operator may appeal to the Appeal Board under Part VI of the Bill.
As mentioned by Mr CHUNG a related issue which had received much attention during our discussions with the ad hoc group was the subject of karaoke centres. We had considered the practicability of enlarging the ambit of this Bill to make them, and other club-like establishments, subject to the safety requirements of the
certification system. However, we had to drop this proposal after receiving advice from counsel that such proposal would be inadmissible under Standing Order 45 for exceeding the scope of this Bill.
Other options are being explored. We shall monitor the effect of this Bill on karaoke centres before firming up our decision.
Sir, I beg to move.
Question on the Second Reading of the Bill put and agreed to. Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
QUEEN ELIZABETH FOUNDATION FOR THE MENTALLY HANDICAPPED (AMENDMENT) BILL 1991 Resumption of debate on Second Reading which was moved on 22 May 1991 Question on the Second Reading of the Bill put and agreed to. Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
Committee stage of Bills
Council went into Committee.
HONG KONG BILL OF RIGHTS BILL 1990
Clauses 3 and 13 were agreed to.
Clauses 1, 6, 7 and 11
MRS CHOW: Sir, I move that the clauses specified be amended as set out in the paper circulated to Members.
Clause 1 new subclause (1) updates the title of the Ordinance and new subclause (2) provides the Ordinance to take effect after publication in the Gazette, that is, 8 June 1991. The proposed amendments for clause 6, the reasons of which have been gone into fully by the Attorney General earlier, stand as I propose in the said
circulated paper. The amendment to clause 7 is to take inter-citizen rights out of the Bill of Rights. The proposed amendment to clause 11 is made in response to
concerns that the orginal clause 7 seemd to imply that the Bill of Rights is of a lower status than the immigration legislation.
Sir, I so move.
Proposed amendments
Clause 1
That clause 1 be amended --
(a) in subclause (1) by deleting "1990" and substituting "1991";
(b) by deleting subclause (2) and substituting--
"(2) This Ordinance shall come into operation on 8 June
1991.".
Clause 6
That clause 6 be amended --
(a) by deleting subclause (1) and substituting --
"(1) A court or tribunal -
(a) in proceedings within its jurisdiction in an action for
breach of this Ordinance; and
(b) in other proceedings within its jurisdiction in which a
violation or threatened violation of the Bill of Rights
is relevant,
may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances.";
(b) in subclause (2), by adding "held to be" after "be".
Clause 7
That clause 7 be amended, by deleting the clause and substituting-- "7. Binding effect of Ordinance
(1) This Ordinance binds only -
(a) the Government and all public authorities; and
(b) any person acting on behalf of the Government or a
public authority.
(2) In this section -
"person" (㆟) includes any body of persons, corporate or
unincorporate.".
Clause 11
That clause 11 be amended, by deleting the clause and substituting-- "11. Immigration legislation
As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.".
Question on the amendments proposed, put and agreed to.
Question on clauses 1, 6, 7 and 11, as amended, proposed, put and agreed to.
Clause 2
MRS CHOW: Sir, I move that clause 2 be amended as set out under my name in the paper circulated to Members. This consequential amendment is as a result of amendment to clause 1(1) and because now there is to be no blanket freeze.
Sir, I so move.
Proposed amendment
Clause 2
That clause 2(1) be amended, in the definition of "commencement date", by deleting "the provisions of this Ordinance other than section 3 come into operation" and substituting "this Ordinance comes into operation".
Question on the amendment proposed, put and agreed to.
CHIEF SECRETARY: Sir, I move that clause 2 be further amended as set out under my name in the paper circulated to Members.
Proposed amendment
Clause 2
That clause 2(3) be further amended, by deleting "implement further the International Covenant on Civil and Political Rights as applied to Hong Kong" and substituting-- "provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong, and for ancillary and connected matters".
Question on the amendment proposed, put and agreed to.
MRS LAU (in Cantonese): I move that clause 2 be further amended as set out under my name in the paper circulated to Members. The purpose of the amendment is to incorporate into the Bill of Rights Bill the wording of the relevant clauses or
articles in the Treaty version I referred to earlier in my Second Reading debate speech and also to state explicitly that 公民權利和政治權利國際公約 is equivalent to 公 民及政治權利國際盟約.
Proposed amendment
Clause 2
That clause 2 be further amended --
(a) by deleting subclause (4) and substituting -
本條例不得解釋為政府或任何主管當局 團體或個㆟有權從事活動或 實行行 為 破壞㆟權法案確認之任何㆒種權利與自由 或限制此種權利與自由逾越㆟ 權法案規 定之程度 〔比照 公民權利和政治權利國際公約 第五 ㆒條〕
(b) by deleting subclause (5) and substituting -
香港境內依法律 公約 條例或習俗而承認或存在之任何基本㆟ 權 不得 藉口㆟權法案未予確認或確認之範圍較狹 而加以限制或減免義務 〔比 照 公民權利 和政治權利國際公約 第五 ㆓條〕
(c) by adding after subclause (6) -
凡在本條例㆗提述 公民權利和政治權利國際公約 即提述已交存聯 合國 檔庫的 公民及政治權利國際盟約 文件 .
Question on the amendment proposed, put and agreed to.
Question on clause 2, as amended, proposed, put and agreed to.
Clause 4
CHIEF SECRETARY: Sir, I move that clause 4 be amended as set out in the paper circulated to Members.
Proposed amendment
Clause 4
That clause 4 be amended, by deleting the clause and substituting-- "4. Interpretation of subsequent legislation
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 International Covenant on Civil and Political Rights as applied to Hong Kong.".
Question on the amendment proposed, put and agreed to.
Question on clause 4, as amended, proposed, put and agreed to.
Clause 5
MRS LAU (in Cantonese): Sir, I move that clause 5 be amended as set out under my name in the paper circulated to Members. The purpose of the amendment is to incorporate into the Bill of Rights Bill the wording of the relevant clauses or articles in the Treaty.
Proposed amendment
Clause 5
That clause 5 be amended --
(a) by deleting the heading and substituting "緊急狀態";
(b) by deleting subclause (2) and substituting -
根據第 款採取之措施不得
抵觸依國際法所負並適用於香港之義務 但依 公民權利和政治權利 國 際公約 所負之義務除外
引起純粹以種族 膚色 性別 語言 宗教或社會階級為根據之歧視 或
減免履行㆟權法案第㆓ ㆔ ㆕ ㆒ 及 ㆓ 七 十㆓ 十㆔及 十 五條之規定
〔比照 公民權利和政治權利國際公約 第㆕條〕
Question on the amendment proposed, put and agreed to.
MRS CHOW: Sir, I move that clause 5 be further amended as set out under my name in the paper circulated to Members. The addition is to help allay fears and provides that even in times of public emergency, only lawful measures may be taken.
Sir, I so move.
Proposed amendment
Clause 5
That clause 5(1) be amended, by adding after "situation"--
", but these measures shall be taken in accordance with law". Question on the amendment, proposed, put and agreed to.
Question on clause 5, as amended, proposed, put and agreed to.
Clauses 8, 9, 10, 12
MRS LAU (in Cantonese): Sir, I move that clauses 8, 9, 10 and 12 be amended as set out under my name in the paper airculated to Members.
The purpose of amending clause 8 of the Bill, that is, Part 2 relating to human rights provisions, is to wholly adopt the wording of the relevant clauses/articles
in the Treaty. The purpose of amending clauses 9, 10 and 12 is to bring out the meaning of the clauses more clearly.
Proposed amendments
Clause 8
That clause 8 be amended, by deleting the clause and substituting -- 香港㆟權法案
香港㆟權法案如㆘所列
第㆒條
享受權利不分區別
㆒ ㆟㆟得享受㆟權法案所確認之權利 無分種族 膚色 性別 語言 宗教 政見或其他主張 民族本源或社會階級 財產 出生或其他身分等等
㆓ ㆟權法案所載㆒切公民及政治權利之享受 男女權利 ㆒律平等 〔比照 公民權利和政治權利國際公約 第㆓及㆔條〕
第㆓條
生存的權利
㆒ ㆟㆟皆有㆝賦之生存權 此種權利應受法律保障 任何㆟之生命不得 無理剝
奪
㆓ 非犯情節最重大之罪 且依照犯罪時有效並與㆟權法案規定及 防止及懲 治殘 害㆟群罪公約 不抵觸之法律 不得科處死刑 死刑非依管轄法院終局判決 不得執行
㆔ 生命之剝奪構成殘害㆟群罪時 不得認為本條授權以任何方式減免依 防 止及 懲治殘害㆟群罪公約 規定所負之任何義務
㆕ 受死刑宣告者 有請求特赦或減刑之權 ㆒切判處死刑之案件均得邀大赦 特 赦或減刑
五 未滿 歲之㆟犯罪 不得判處死判 懷胎婦女被判死刑 不得執行其刑
六 不得援引本條 而延緩或阻止在香港廢除死刑
〔比照 公民權利和政治權利國際公約 第六條〕
第㆔條
不得施以酷刑或不㆟道處遇
亦不得未經同意而施以試驗
任何㆟不得施以酷刑 或予以殘忍 不㆟道或侮辱之處遇或懲罰 非經本㆟自願同 意 尤不得對任何㆟作醫學或科學試驗
〔比照 公民權利和政治權利國際公約 第七條〕
第㆕條
不得使-
奴隸或奴工
㆒ 任何㆟不得使-
奴隸 奴隸制度及奴隸販賣 不論出於何種方式 悉應禁 止
㆓ 任何㆟不得使-
奴工
㆔ ㆙ 任何㆟不得使服強迫或強制之勞役
㆚ 本項所稱 強迫或強制勞役 不包括㆘列各項
經法院依法命令拘禁之㆟ 或在此種拘禁假釋期間 之㆟ 通常 必須擔任之工作或服役
任何軍事性質之服役 及在承認㆟民可以本其信念
反對服兵役之 情況㆘ 依法對此種㆟徵服之國民服役
遇有緊急危難或災害禍患危及社會生命安寧時徵召 之服役
為正常公民義務㆒部分之工作或服役 〔比照 公民權利和政治權利國際公約 第八條〕
第五條
㆟身自由和安全
㆒ ㆟㆟有權享有身體自由及㆟身安全 任何㆟不得無理予以逮捕或拘禁 非 依法 定理由及程序 不得剝奪任何㆟之自由
㆓ 執行逮捕時 應當場向被捕㆟宣告逮捕原因 並應隨即告知被控案由
㆔ 因刑事罪名而被逮捕或拘禁之㆟ 應迅即解送法官或依法執行司法權力之 其他 官員 並應於合理期間內審訊或釋放 候訊㆟通常不得加以羈押 但釋放得令 具報 於審訊 時 於司法程序之任何其他階段 並於㆒旦執行判決時 候傳到場
㆕ 任何㆟因逮捕或拘禁而被奪自由時 有權聲請法院提審 以迅速決定其拘 禁是 否合法 如屬非法 應即令釋放
五 任何㆟受非法逮捕或拘禁者 有權要求執行損害賠償
〔比照 公民權利和政治權利國際公約 第九條〕
第六條
被剝奪自由的㆟的權利
㆒ 自由被剝奪之㆟ 應受合於㆟道及尊重其㆝賦㆟格尊嚴之處遇 ㆓ ㆙ 除特殊情形外 被告應與判決有罪之㆟分別羈押 且應另予與其
未經 判決有罪之身分相稱之處遇
㆚ 少年被告應與成年被告分別羈押 並應儘速即予判決
㆔ 監獄制度所定監犯之處遇 應以使其--狙泵蛪 s 重適社會生活為基 本目的 少年犯㆟應與成年犯㆟分別拘禁 且其處遇應與其年齡及法律身 分相稱
〔比照 公民權利和政治權利國際公約 第十條〕
第七條
不得因違約而被監禁
任何㆟不得僅因無力履行契約義務 即予監禁
〔比照 公民權利和政治權利國際公約 第十㆒條〕
第八條
遷徙往來的自由
㆒ 合法處在香港境內的㆟ 在香港境內有遷徙往來之自由及擇居之自由 ㆓ ㆟㆟應有自由離去香港
㆔ ㆖列權利不得限制 但法律所規定 保護國家安全 公共秩序 公共 生 或風 化 或他㆟權利與自由所必要 且與㆟權法案所確認之其他權利不扺觸之限制 不在此限
㆕ 具有香港居留權的㆟進入香港之權 不得無理褫奪
〔比照 公民權利和政治權利國際公約 第十㆓條〕
第九條