TNAG-2175-FCO40-3112-Hong-Kong-Bill-of-Rights-1990 — Page 82

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free from offending provisions and that time is needed to assess the true position, the ramifications of inconsistencies, and whether amendments are required. Otherwise an element of uncertainty in our statute laws will be created at an important time. The Administration has given a possible example of a seemingly innocuous provision (the Fixed Penalty Scheme for traffic offences) which might be successfully challeged under the Bill of Rights with grave practical consequences. The Ad Hoc Group is not convinced by this argument. It is unlikely that there would be the time or resources to review the content of 31 volumes, innocuous or otherwise, of the Laws of Hong Kong in a two-year freeze period; even if there were time, the element of uncertainty would still not be removed because under the Draft Bill of Rights the decision on whether a provision is consistent or not with the Bill rests not with those who draft or enact legislation but with the courts.

Recommendation

The

The Ad Hoc Group recommends that there should be a selective freeze for one year achieved by listing in a schedule ordinances likely to be affected by the Bill of Rights. freeze period can be extended, upon the approval of the Legislative Council, for another year. If a schedule is adopted, the Administration will have to indicate clearly the specific relevant clauses/sections of certain ordinances which need to be frozen and therefore put on to the schedule. The inclusion should be governed by certain criteria defined and justified by the Administration.

Conflict with the Basic Law

20.

Judging from Article 39 of the Basic Law, the Ad Hoc Group believes that, by and large, the Bill of Rights is not in conflict with the Basic Law. However it must be emphasised that the Ad Hoc Group and the Working Group have not looked into and examined the Bill of Rights vis-a-vis the Basic Law in great detail. The Group therefore recommends that the Administration should conduct a detailed comparative study to ensure that no such conflict exists.

21.

The Heung Yee Kuk, in its submission to the Ad Hoc Group, has argued that Articles 1 and 23 of the Draft Bill of Rights not only conflict with Chinese customary Law and Section 13 of the New Territories Ordinance but conflict also with Para 2 in Annex I and Para 2 in Annex III to the Joint Declaration and Articles 8, 40 and 122 of the Basic Law. A non-exhaustive list of privileges under Chinese customary law is at Annex H. Some of the problems arise from the customary right by which land-holdings through t'sos and tongs (customary family land trusts) pass only through the male line: similar rights exist for reduced rental with regard to old schedule lots, village lots, small houses and similar rural holdings where the property is held by a lawful successor in the male line. This privilege is referred to in Article 122 of the Basic Law. The