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Since 1991, this Council has enacted 36 amending Ordinances or orders to bring existing legislation into line with the BORO. The issues involved have been approached with realism and good sense and with a firm understanding of the need to assess the impact of changes and to strike a balance between the protection of human rights and other needs of society including law enforcement.
A few Members have asserted that these amendments are detrimental to the effective governance of Hong Kong. Let me put it on the record that the amendments that have been made have not undermined the Government's authority or ability to govern. Our Police force and other law enforcement agencies continue to exercise their powers effectively. The crime rate in Hong Kong is still one of the lowest among international cities. The removal of restrictions on press freedom and freedom of expression, many of which have never been used or not been used for years, has not prompted our media to forego its high standards of journalism. Rights of assembly and association are not abused. People in Hong Kong have shown that they are well capable of exercising the rights and freedoms provided for in the BORO and the ICCPR in a responsible and civilised manner. It signifies a lack of trust to think otherwise.
Impact of BORO on Legal System
All new legislation needs to be interpreted by the courts in order that its application to particular situations can be precisely determined. As time goes by, and areas of difficulty are resolved, the effect of new legislation becomes settled. The BORO is no different from other legislation in this respect.
BOR challenges have been primarily concerned with provisions of the criminal law which deviate from the principle that it is for the prosecution to prove the accused's guilt beyond reasonable doubt. Through decisions of the Court of Appeal and the Privy Council, the principles applicable to such provisions are now well established. In reaching these decisions, the Judiciary have followed the principle of proportionality which is well established in international human rights jurisprudence. In essence, this principle allows for the protection of human rights to be balanced against the public interest.
To cite an example, the Court of Appeal, in April 1995, confirmed the legality of section 10 of the Prevention of Bribery Ordinance which makes it an offence for civil servants to maintain a standard of living not commensurate with their income in the absence of a satisfactory explanation. The Court said that the provision was dictated by the inherent difficulties in proving corruption and goes no further than necessary. The balance is right.