Entrenchment
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10.
Many of the submissions to the Ad Hoc Group put forward the view that the Bill of Rights should be sufficiently entrenched to ensure that it will not be easily repealed. Some groups suggest that if the Bill is to be repealed in the future there must be the consent of a large majority of Legislative Councillors (e.g. 75%). Reference was made in at least two submissions to the recent Bill of Rights incorporated into the Constitution of Montserrat, a British Dependent Territory in the West Indies. The Group notes that entrenchment of the Bill would be technically possible at least up to 30 June 1997 - for example through legislation by the Sovereign Power and through an amendment to the Letters Patent and Royal Instructions, but that entrenchment would not be possible under the Basic Law, as it is worded at present, after 30 June 1997: the Basic Law does not allow the enactment by the SAR Legislature of special kinds of legislation. Some groups, while recognising that the Bill of Rights cannot be entrenched under the Basic Law as it is worded at present - after 30 June 1997, have nonetheless recommended that it be entrenched until that date. An academic has interpreted Article 39 to be capable of entrenching a Bill of Rights previously enacted in Hong Kong. Another group goes one step further by recommending that the Letters Patent should not only include a provision mirroring Article 39 of the Basic Law; it should also incorporate the substance of Chapter 3 of the Basic Law.
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11.
The Administration has put forward the view that, while direct entrenchment of the Bill of Rights beyond 30 June 1997 would not be possible under the Basic Law as worded at present, the Bill of Rights would be "indirectly entrenched" through Article 39 of the Basic Law: Article 39 has the effect of entrenching the Covenant on which the Bill of Rights is based and any amendment to the Bill of Rights (or, indeed, of any other piece of legislation) that is inconsistent with the Covenant would be a breach of this Article. In its discussions with the Ad Hoc Group, the Administration has explained that, while repeal of the Bill of Rights by the SAR legislature after 1997 would be technically possible, any amendment which will render the Bill to be inconsistent with the ICCPR as applied to Hong Kong - and therefore with Article 39 of the Basic Law - would not be possible. The Ad Hoc Group notes the Administration's proposal that a provision similar to Article 39 should be inserted in the Letters Patent to provide a similar degree of "indirect entrenchment" of the Bill of Rights up to 30 June 1997. The Group has not yet been provided with the proposed wording of this provision.
Recommendation
In the apparent absence of a more satisfactory method of entrenching the Bill of Rights beyond 30 June 1997 and given the present wording of the Basic Law, the Group accepts the
No comments yet.
Private notes are available after approval.