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method of "indirect entrenchment" proposed by the Administration. The Group has considered the proposal of incorporating Chapter 3 of the Basic Law into the Letters Patent in order to give the Bill added protection but has reservation. In accordance with the recommendation the OMELCO comments on the Basic Law (Draft), the Group recommends that China should be persuaded to allow a Bill of Rights to enjoy a status superior to other Ordinances to implement Article 39 of the Basic Law.
Status vis-a-vis other laws
12.
The Ad Hoc Group notes that the Draft Bill of Rights overrides all previously enacted legislation in Hong Kong, subject to the proposed freeze period, and over the common law and administrative practices. The Group also notes that, just as the Basic Law as worded at present would not allow a Bill of Rights to be directly entrenched against easy amendment or repeal, the Basic Law contains no provision either for allowing one piece of legislation enacted by the SAR Legislature to be superior to subsequently enacted legislation. The Administration has proposed that, in order to provide special status for the Bill of Rights over future enactments, every Bill introduced after the enactment of the Bill of Rights should contain a clause making it subject to the Bill of Rights. It has also included in the Draft Bill of Rights a provision (Clause 4) enjoining judges to interpret every future Ordinance as being subject to the Bill of Rights, if it is possible to do so. The Ad Hoc Group notes that the application of the Bill of Rights to future enactments will depend entirely on the willingness of future legislatures to include the subjection clause in those enactments.
13.
While many submissions have made the general remark that the Letters Patent should be amended to achieve the effect of supremacy, some submissions have specifically recommended that supremacy should be given to the Bill of Rights, for example, by stating the fact in the Letters Patent, or by stipulating the proposed subjection clause practice in the Letters Patent, or by including the rights detailed in Chapter 3 of the Basic Law into the Letters Patent itself. With the exception of one group, which recommends that supremacy after 30 June 1997 should be achieved by making the Bill of Rights a part of the Basic Law, no group has suggested how the supremacy of the Bill of Rights might be maintained over legislation enacted after 30 June 1997, when the Letters Patent no longer applies to Hong Kong.
Recommendation
Noting that Clause 4 of the Bill requires subsequent enactments to be construed as being subject to the Bill to the extent that the construction of the subsequent enactment so admits, and noting also that the Administration proposes as an administrative measure that all subsequent bills shall contain
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