XN000022-1995-11-15 — Page 15

Status of the BORO

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The BORO has a status no different from that of any other ordinance. Like other Ordinances it will be subject to the Basic Law. What is entrenched by the Letters Patent now and by the Basic Law after 30 June 1997 is the ICCPR not the BORO.

We do not accept the argument expressed by the Legal Sub Group of the PWC that S.3 of the BORO makes it supreme over other laws. This is not correct. Section 3 does no more than state expressly the common law principle that, where two pieces of legislation are inconsistent, the later one impliedly repeals the earlier one to the extent of the inconsistency.

Some Members have cited as support for their view that the BORO has an overriding status, the description of the BORO included in the UKG's report to the United Nations on Hong Kong. The statement in question, is simply a reference to the repealing effect of the BORO on pre-existing legislation that is, laws which were in force prior to the enactment of the BORO in 1991. As I have said, this reflects the common law principle that where two pieces of legislation are inconsistent, the later one repeals the inconsistencies in the earlier one.

We also do not consider S.2(3) and S.4 of the BORO to be contrary to the Basic Law. S.2(3) deals with the interpretation of the BORO, and states a principle that applies to all ordinances which implement treaties. S.4 reflects an existing rule of interpretation that legislation should, if possible, be construed in accordance with relevant international obligations. Both these sections are no more than a restatement of common law principles that apply to all ordinances.

It is our firm conclusion, therefore, that the PWC's proposals are based on a misunderstanding of the legal effect of the BORO and we see no need to amend it in the manner that has been suggested. Such a move would give rise to serious concern in Hong Kong and overseas about the continued protection of human rights as well as the rule of law in Hong Kong.

The BORO enjoys widespread support within Hong Kong and the international community. Most recently, the United Nations Human Rights Committee has welcomed the enactment of the Ordinance and expressed its appreciation for the progress that has been made in reviewing laws for consistency with the BORO and therefore with the ICCPR.