5. Until now, the two Covenants have been implemented in Hong Kong, as in the United Kingdom, through a combination of common law, legislation and administrative measures. This system has not been static, but has evolved continuously through judicial interpretation of existing legislation and enact- ment of new laws; through developments in the common law; and though refinement of administrative practices.
6. For some time, there has been growing support in the community for the idea of a single piece of legislation, a Bill of Rights, which would bring together in domestic law all relevant rights included in the Covenants. This idea was raised in a number of contexts, most notably during local discussion of the first draft Basic Law in 1987; and later, in 1988, at a meeting of the UN Human Rights Committee in Geneva. During 1989, public support for such a Bill increased. The Government then decided that a draft Bill of Rights for Hong Kong giving effect in local law to the relevant provisions of the ICCPR, as applied to Hong Kong, should be prepared and that the draft should be issued as a White Bill for public consultation. This booklet contains the draft Hong Kong Bill of Rights Ordinance 1990. Part 1t of the draft Ordinance is called the Hong Kong Bill of Rights, and its wording follows closely the text of the ICCPR.
7. The Government considered also including the rights contained in the ICESCR, But the provisions of the ICESCR are different in nature from those of the ICCPR. In general, they are not rights that can be easily enforced in the courts. For this reason the Government decided to concentrate on civil and political rights in the draft Ordinance.
8.
The draft Ordinance is divided into three main parts:
(a) The preliminary part. This outlines the background, and how the
rights set out in the draft Ordinance are to be applied and enforced,
(b) The Hong Kong Bill of Rights. This gives the text of the rights
recognised.
(r) The reservations. When the Government of the United Kingdom ratified the ICCPR, they made the ratification subject to certain reservations. Those reservations which are relevant to Hong Kong are reflected in the Ordinance (see also paragraphs 21 and 48-53 below).
9. Each of the clauses of the draft Ordinance are described in more detail below. In order to be effective the draft has to contain a number of technical details, particularly when the law is reproducing the language of the ICCPR. However, in order to make this commentary more readable, some details have
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been omitted. Also, while the commentary attempts to explain each clause, it will be the courts that will give authoritative meanings to the provisions of the Ordinance.
THE HONG KONG BILL OF RIGHTS ORDINANCE 1990
Preamble
10. The preamble (before Clause 1) indicates that the draft Ordinance is intended to give effect to the rights recognised in the International Covenant on Civil and Political Rights. The Covenant is a treaty agreed to by the United Kingdom which obliges participating countries to grant to everyone certain rights and freedoms.
PART I
Clause 1--Short title and commencement
11. The draft Ordinance is called the Hong Kong Bill of Rights Ordinance 1990.
Clause 2-Interpretation
it
12. Some of the terms used in the draft Ordinance are given a meaning. Also, is made clear that when the courts are giving a meaning to words that are not defined, they should look to the Covenant for guidance and also to decisions by courts or like bodies that have interpreted the Covenant, or similar words from other human rights treaties. Lastly, this clause makes it clear that fundamental rights and freedoms that the law recognizes but which are not included in the Bill of Rights still exist to their full extent, and that no one is permitted to do anything to undermine the rights and freedoms that are in the Bill of Rights.
Clause 3 --- Ordinance to override existing law
13. If it is possible that an existing Hong Kong enactment can be given a meaning that does not restrict a right or freedom guaranteed in the Bill of Rights then the enactment should be given that meaning. But if any provision in an existing law plainly conflicts with the Bill of Rights then it is repealed and is no longer the law.
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