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CJ's statement on BORO
The following is issued on behalf of the Chief Justice, Sir Ti Liang Yang:
"I have outside of court expressed some personal views on the Bill of Rights Ordinance. I repeat those views here to inform the general public of what I have said in private.
"I have expressed the view that S 3(2) of the Ordinance does two things which
cause concem:
(1) It gives the judicial organ legislative power.
(2) It in effect raises the status of the Ordinance above the ordinary ordinances so that in reality the Ordinance occupies a position between the Basic Law (as from 1 July 1997) and the ordinary statutes.
"The New Zealand model may well be a more preferable solution.
"In other words, S 3(2) raises a number of concerns from a jurisprudential point of view:
(1) The power to repeal is a legislative function and not a judicial function. S 3(2) in effect gives the courts a legislative function though it does not specifically say so. A practical difficulty is that Magistrate A and Magistrate B may hold different views on the same issue in different cases. The resulting chaos need not be specified.
(2) The true effect of S 3(2) is to raise the Ordinance above Hong Kong's ordinary laws in spite of the fact that the Ordinance may be repealed or amended like any statute (unlike the Canadian Charter of Rights, which is incorporated into the Canadian Constitution). So instead of a"two-tier" system (that is, the Basic Law and the ordinary laws) the Bill comes in between and creates a three tier system.
"The gist of the views which I expressed (purely as my own) can be outlined as
follows:
(i) It is cause for concern that our Bill of Rights Ordinance does not preserve the demarcation between the Judiciary and the Legislature as clearly as does, for example, New Zealand's Bill of Rights Act which, as I understand it, requires their Executive to bring to their Legislature's attention any bill (that is, proposed legislation) which appears to be inconsistent with their Bill of Rights. Therefore New Zealand's system may be preferable to ours.