TNAG-1722-FCO40-2415-Future-of-Hong-Kong-Basic-Law-1988 — Page 141

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HONG KONG LEGISLATIVE COUNCIL 13 July 1988

will uphold national unity' in the preamble of the Basic Law. That will do. This is to achieve the affect of shifting the task of upholding national unity onto the shoulders of the SAR Government rather than individuals.

My second request is for the articles to have very clear wording so that they can function properly. Most of the contraversial expressions used in the articles have to do with legal matters, for example, article 5 and article 41 use the expressions 'in accordance with law'. I think this is very dangerous. Does this mean that the fundamental rights and freedoms of Hong Kong people will be at the mercy of the legislature? This is because the basic law does not prohibit the legislature from enacting harsh laws. I figure that the intention of using 'in accordance with law' was not to impose legislative restrictions over Hong Kong people's fundamental rights and freedoms, but is appears that this is precisely the effect it may have none the less. Fundamental human rights come with the birth of a person. They are not granted by the ruler. They should never be subject to any legislative restrictions. Therefore I think the expression 'in accordance with law' should go. Article 39 says that: the freedom and rights enjoyed by Hong Kong residents should not be restricted unless prescribed by law.' I think wording like this is acceptable. This is a good example.

Articles 27 and 28 use the expressions ‘unlawfully arrested', 'detained and imprisoned", "unlawful restrictions of the residents' freedom', ‘unlawful search or intrusion into residents' homes', but no provisions are made to prohibit the commitment of these acts on an arbitrary basis. How can human rights be safeguarded under these circumstances? Therefore I suggest that the word "unlawful' should be changed to ‘arbitrary' so that the articles can function as intended. Article 30 says that Hong Kong residents who hold valid travel documents shall have the freedom to travel and freedom of entry and exit. I feel that the word "valid' could constitute restriction over freedom of entry and exit. What is meant by valid? The word is indefinitive. It could mean periodical validity or legality. The latter meaning could enable the ruler to restrict freedom of entry and exit by invalidating the travel documents.

Article 23 attempts to define Hong Kong SAR residents. I think to put it in Chapter III, which is about fundamental rights and duties of the residents, is inappropriate. It could be misinterpreted to mean that only SAR residents need to abide by the articles. Therefore, these two particular sections should be included in the preamble.

Article 24 refers to Hong Kong residents. I think a more appropriate expression would be anybody in Hong Kong'-meaning that all persons including tourists, as long as they are residing or transiting in Hong Kong are entitled to the rights listed in Chapter III. Because of these proposed alterations, article 41 saying that persons in the Hong Kong SAR other than Hong Kong residents shall in accordance with law enjoy the rights and freedoms of Hong Kong residents prescribed in this chapter, can be deleted to avoid repitition.