TNAG-2173-FCO40-3110-Hong-Kong-Bill-of-Rights-1990 — Page 39

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14. However, Clause 1(2) makes sure that existing enactments will not be affected in this way for 2 years after the Bill of Rights becomes the law. This allows some time for Hong Kong laws to be checked to make sure that they comply with the Bill of Rights. If they do not, the laws can, during the 2 years, be removed and other laws put in their place. Without this freeze period, there might be no effective law in certain areas during the time it took for successfully challenged old faw to be replaced. The 2 year period applies only to statutory laws. The common law andi administrative practices and procedures can be challenged from the outset.

Clause 4-Interpretation of subsequent enactments

15. If it is possible that a Hong Kong law, made after the Bill of Rights becomes law, can be given a meaning that does not restrict a right or freedom guaranteed in the Bill of Rights, then the law should be given that meaning. If a provision in such a law can only be given a meaning which restricts the rights and freedoms guaranteed in the Bill of Rights, Clause 4 will not prevent that provision from operating. However it is proposed that each Ordinance made after the Bill of Rights becomes law will, as a matter of practice, contain a provision requiring the rest of the Ordinance to be subject to the Bill of Rights. The effect of such a provision in an Ordinance would be to prevent that Ordinance from restricting the rights and freedoms guaranteed in the Thill of Rights.

Clause SPublic Emergencies

16. The Covenant provides that, in a serious public emergency, certain measures may be taken that would normally infringe the Covenant. Clause 5 of the draft Ordinance contains a similar provision. If a public emergency is officially declared, measures can be taken to restrict the rights and freedoms in the Bill of Rights to cope with the emergency. However, the measures cannot restrict the following rights:

(a) the right to life (Article 2 of the Bill of Rights);

(b) the prohibition on torture and inhuman treatment (Article 3);

(c) the prohibition on slavery (Article 4);

(d) the prohibition on imprisonment for being in debt (Article 7);

(e) the prohibition on making conduct a crime that at the time it took

place was not a crime (Article 12);

() the right to be recognised as a person with legal rights (Article 13);

(g) the freedom of thought, conscience and religion (Article 15).

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17. Moreover, the measures cannot be applied so as to treat people differently because of their race, colour, sex, language, religion or social origin.

Clause 6 Remedies for contravention of Bill of Rights

18. A breach of the Bill of Rights is not a crime but a civil wrong called a tort. Thus, if there is a breach of the Bill of Rights, the person who was affected can, for example, sue in the courts for monetary compensation.

19. Courts can act if a breach of the Bill of Rights has happened or is about to happen. For example, a court may be able to stop someone committing a breach, or to cancel the effect of some action that was a breach. Every court- the High Court, District Court and Magistrates Court-may act in this way, as well as tribunals that are not courts.

Clause 7-Binding effect of Ordinance

20. The Ordinance will apply to everyone, including the government. When the government has dealings with people in Hong Kong, or when one person in Hong Kong has dealings with another, they are prohibited by law from breaching the Biff of Rights.

PART ||

THE HONG KONG BILL OF RIGHTS

Clause &

21. Part II of the draft Ordinance is called the Hong Kong Bill of Rights. This, is where the individual rights are set out. They are almost identical to the rights contained in the Covenant. However, some of the rights are restricted by Part III of the draft Ordinance. This is because when the United Kingdom Government agreed to the Covenant, it reserved the right in a few cases not to apply the full provisions to Hong Kong. The reservations are at Part III of the draft Ordinance, sections 9 to 14.

Article 1--- Entitlement to rights without distinction

22. Article I of the Hong Kong Bill of Rights ensures that the rights granted are applied in a non-discriminatory way. For example, they cannot be applied to one sex but not the other or to one race in preference to another,