TNAG-2175-FCO40-3112-Hong-Kong-Bill-of-Rights-1990 — Page 76

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8.

The Group is aware that, even if a Bill of Rights is not enacted, it will be necessary to modify existing laws if they are to be consistent with the provisions of the ICCPR as applied to Hong Kong and beyond 30 June 1997 - with Article 39 of the Basic Law. The Ad Hoc Group has discussed the alternative method of applying the ICCPR to Hong Kong through legislation without the enactment of a comprehensive Bill of Rights. There would be a number of problems with such a method. In the first place it would be necessary to examine every existing ordinance and piece of subsidiary legislation to ensure that the relevant rights are observed and promoted in the relevant piece of legislation: this would be extremely time. consuming, and even at the end of the exercise there would probably be a fairly large residue of rights that are not covered in the Laws of Hong Kong (e.g. freedom of thought, conscience and religion, protection of privacy) which would still need to be provided for, presumably in a separate piece of legislation. Secondly, the absence of a single, explicit, comprehensive Bill of Rights and the dispersal throughout the laws of Hong Kong of provisions giving effect to the ICCPR would make it far more difficult for members of the public to be aware of their rights and the educative value of a comprehensive Bill would be lost. Thirdly, the remedies available under such a system would not be so effective as those available under a comprehensive, justiciable Bill of Rights. Lastly, any supremacy, special status or entrenchment that the Bill may be given would not apply. The Group considers that a single, comprehensive Bill of Rights to be preferable to merely implementing the ICCPR through individual pieces of legislation.

9.

Concern has, nonetheless, been expressed both within the Ad Hoc Group and by some of the representations that a Bill of Rights might severely hinder the effective enforcement of law and order, and, in particular, the anti-corruption activities of the ICAC. The Group felt it necessary to have as clear and as full an assessment as possible of the implications of the Draft Bill of Rights on existing legislation and law enforcement before recommending whether the Bill should be supported: the Legal Working Group's assessment of the implications is reported on in paragraphs 14 to 16 below.

Recommendation

In

Having weighed the advantages and possible disadvantages of a Bill of Rights, the Ad Hoc Group supports the introduction of a Bill of Rights in Hong Kong. The Group notes the critical comments on the Draft Bill from certain Chinese officials. order to achieve the objective that the Bill of Rights continues to be in force beyond 30 June 1997, the Group urges the Administration to ensure the consistency with the Basic Law. The Group recommends that greater efforts be made to explain to the Chinese Authorities the value and purpose of a Bill of Rights in Hong Kong with the objective that the Bill will be allowed to exist beyond 30 June 1997.