4. Before the ordinance was enacted the Hong Kong Government's attention was drawn to the International Covenant on Civil and Political Rights of 19 December 1966 (Treaty Series No 6 of 1977, Cmnd 6702), which applies to Hong Kong by virtue of the terms of the United Kingdom's ratification of 20 May 1976. In particular they were referred to Article 9, dealing with arbitrary detention and recourse to the courts. Paragraphs 1 and 4 of that Artile are particularly relevant. They read as follows:
"1.
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
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5.
4.
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."
Article 9 of the International Covenant is worded very similarly to Article 5 of the European Convention on Human Rights, and paragraphs (4) of these two Articles are almost identical. We have had several recent applications against us before both the European Commission of Human Rights and the European Court of Human Rights brought by persons who alleged that they were unable to test the lawfulness of their detention in accordance with paragraph 4 of Article 5 and in which our defence of relying on the ability of the detainees The European to proceed for a writ of habeas corpus failed. Court of Human Rights in its judgment (November 1981) in the case of X v UK, after carefully reviewing the right of a mental patient, held in Broadmoor Hospital under the provisions of the Mental Health Act 1959, to apply for a writ of habeas corpus, decided that it was not a sufficient remedy to meet the conditions contained in Article 5(4) of the Convention. passages from the Court's judgment are perhaps worth quoting:
"In habeas corpus proceedings, in examining an administrative decision to detain, the Court's task is to enquire whether the detention is in compliance with the requirements stated in the relevant legislation and applicable principles of the common law....the Court will not be able to review the grounds or merits of a decision taken by an administrative authority to the extent that under the legislation in question these are exclusively a matter for determination by that authority.
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