TNAG-2175-FCO40-3112-Hong-Kong-Bill-of-Rights-1990 — Page 83

STAM JAMMAMAMMA Ate klas wonde

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Heung Yee Kuk, while it generally otherwise supports the introduction of a Bill of Rights, has informed the Group that it would not be able to support the Bill unless it can be made clear in the Bill that the customary rights of indigenous villagers will be unaffected by the Bill's provisions. The Ad Hoc Group believes that the conflict may not be as great as at first sight appears and that in any event both the Joint Declaration and the Basic Law provide for customary law to be maintained "save for any that contravene the Basic Law and subject to any amendment by the HKSAR legislature." Article 8 of the Basic Law will not come into existence until 1 July 1997 and the customary law referred to must necessarily be that which is lawful at that date. Article 40 of the Basic Law provides that the lawful traditional rights and interests of the indigenous inhabitants of the New Territories shall be protected by the HKSAR but does not require this to be done by law. Administrative action of not increasing rentals for females could extend the privileges of Article 122 to females.

22.

The Ad Hoc Group has asked whether there could be other possible conflicts between the Basic Law and the Draft Bill of Rights. The Administration's response has been that, since the Basic Law provides for the implementation of the ICCPR as applied to Hong Kong through the laws, the conflicts. are internal to the Basic Law.

Recommendation

The Ad Hoc Group endorses the principle that equality between the sexes should be upheld. Therefore the Group cannot accept the Heung Yee Kuk's proposal of making special provision in the Bill for its rights which are clearly in contravention to Articles 1 and 23 to be preserved. The Group recommends that the Administration should conduct a detailed study of the alleged conflict and, if the conclusion is that the Chinese customary laws and the New Territories Ordinance are inconsistent with the Bill, these laws should be amended.

Justiciability

23.

Clause 6 of the Draft Bill of Rights provides for remedies in cases where the Bill of Rights is contravened: the possible remedies consist of monetary compensation and other remedies through the law of tort and actions by the courts, for example, to stop someone committing a breach or to cancel the effect of some action that was a breach. An expert, in his submission, has argued that an action in tort would not be an effective remedy for breaches of the Bill by the public authorities. Other representations have made similar criticisms and have pointed to the practice under other Bills of Rights for aggrieved persons to apply to the High Court for redress. A Group also advocates that the Bill should be underpinned by the provision of new remedies against the Crown (e.g. interim relief by way of interim injunction). Some representations have pointed out the limitations that the Crown