TNAG-2714-FCO40-3920-House-of-Commons-Select-Committee-on-Foreign-Affairs-enquiry-1993 — Page 181

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SECOND REPORT FROM

ordinance." In particular this would assist with the potentially complex problem of the Bill of Rights conflicting with many existing ordinances. In this context Mr Wong added: “We have recommended that the Government ought to review existing laws to identify which areas are in possible breach of the two international covenants."2 Such a review is now of even greater urgency and we recommend that it be conducted as soon as possible.

2.10. We note that capital punishment is still mandatory for murder in Hong Kong, but has always been commuted since 1963.3 Capital punishment is, of course, widely used in China for many offences some of which we might consider quite minor. In our view it would be desirable for the people of Hong Kong to review this matter before 1997. Other areas such as freedom of the person, freedom of expression, freedom of the press, and freedom of assembly and association have been widely canvassed, and the extent of their protection under existing laws must be reviewed. We are also anxious that the provisions covering the treatment of prisoners and their possible extradition to the People's Republic should be clarified.

2.11. Miss Maria Tam told us that a Bill of Rights "should not be in the Basic Law. Once you put it in the Basic Law there is always a problem. Is it within or without the highly autonomous area? Do not put it into the Basic Law; do not give anybody beyond the Hong Kong courts the chance to interpret it." If a constitutional court or something similar is established, as discussed above (paragraph 2.8) it may seem less necessary to ensure that only the Hong Kong courts are able to interpret the Bill of Rights. We believe, however, that a Bill of Rights is not something which should rest upon the re-opening of negotiations whose success in this area must be uncertain. On the contrary, a Bill should be introduced as soon as possible so that it becomes entrenched in the Hong Kong system, and a substantial body of case law on it can be built up. Hong Kong should not arrive at 1997 with its rights and freedoms new minted and untested. Therefore the Bill of Rights, if it is to be introduced soon, must be introduced as a piece of Hong Kong's domestic legislation. When she gave evidence before the Committee on 21 April, Miss Tam felt that it would be "far better if we start the real work after the promulgation of the Basic Law, because by then we will know that the words 'through the laws of the Hong Kong SAR” will be there.” As we prepare this report in June, however, the publication of the Basic Law has been indefinitely delayed. Giving evidence on 14 June Sir Geoffrey Howe told us that the plan to wait for the Basic Law “may now need to be put to one side if the progress on the Bill of Rights is to be achieved at the right date.” We believe that a Bill of Rights is a matter of urgency. Therefore we recommend that the Hong Kong Government introduce a Bill of Rights as soon as the work on the review of the existing laws recommended above makes it practicable.

Article 18

2.12 Article 18 of the second draft of the Basic Law states: "In case the Standing Committee of the National People's Congress decides to declare a state of war or, by reason of turmoil within the Hong Kong Special Administrative Region which is beyond the control of the Region, decides that the Region is in a state of emergency, the State Council may decree the application of the relevant national laws in the Region." Sir David Wilson told us in evidence on 12 June that he "would expect Hong Kong people to focus very much on that provision to make sure that... it includes a Hong Kong element in deciding when that point has been reached." The Joint Declaration provides that "The maintenance of public order in the Hong Kong Special Administrative Region will be the responsibility of the Government of the Hong Kong Special Administrative Region." Article 14 of the second draft of the Basic Law gives the Government of the SAR power to ask the Chinese People's Government for "assistance from the garrison in the maintenance of public order and in disaster relief." This article in our view reinforces the need for a directly elected Chief Executive. We do not believe that any additional provisions relating to the involvement of central government in matters of public order in the SAR are necessary or desirable. We accept that it is inevitable that there should be some reference to the powers of the central government in time of war, although in the light of recent statements from Beijing we would like to see "state of war" clearly defined so that it

IQ 554.

2 Ibid.

› Evidence, p 284.

* Q 506.

• Q 503.

• Q 986.

" Q 877.

• Paragraph 3(11).