XN000022-1995-11-23 — Page 5

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The court's function in applying s.3(2) is no different to the court's function in applying the common law principle upon which s.3(2) is based. That principle is that where two pieces of legislation are inconsistent, the later law repeals the earlier one to the extent of the inconsistency. An example of the application of this principle is L v C [1994] 2 HKLR 92 where the High Court ruled that the time limit for applying for financial relief under the Affiliation Proceedings Ordinance had been impliedly repealed by a subsequent Ordinance.

There are other contexts in which the court's function is to rule on the For example, there are compatibility of different pieces of legislation. numerous Hong Kong cases where a court has had to decide whether subsidiary legislation is inconsistent with the Ordinance under which it is made, and therefore invalid.

Regarding the alleged "practical difficulty" of conflicting decisions by magistrates on the same issue, this is (and has been in practice) easily resolved by the Crown appealing one of the decisions to a higher court in order to get an authoritative ruling. Conflicting decisions can and do arise on non-BOR issues and are resolved in the same way. This is a feature of the existing legal system, continuation of which is guaranteed under the Joint Declaration and the Basic Law.

(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of s.3(2) is to raise the Ordinance above Hong Kong's ordinary laws in spite of the fact that the Ordinance may be repealed or amended like any statute (unlike the Canadian Charter of Rights, which is incorporated into the Canadian Constitution).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."

Comment:

The true legal effect of s.3(2) is that inconsistent pre-existing legislation is repealed to the extent of the inconsistency. However, this does not mean that the BORO comes in between other ordinances and the Basic Law. There is nothing in the BORO or the Letters Patent which gives the BORO any status superior to that of other ordinances. The position will be the same after30 June 1997 when the Basic Law will replace the Letters Patent as Hong Kong's constitutional instrument. Then, as with all other ordinances, the BORO will be subject to the Basic Law, rather than, as now, the Letters Patent.

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