ARTICLE 19 and The Hong Kong Journalists Association
requires that all legislation be subordinate to, and consistent with, its provisions.25 The inclusion of the ICCPR in the Basic Law's Article 39, China says, is sufficient protection for human rights, and demonstrates its intention to safeguard the rights and freedoms of Hong Kong people.
It has been argued that the entrenchment of the ICCPR in the Letters Patent may have a carry-over effect into the SAR as a result of it being modelled closely on Article 39 of the Basic Law. The repeal of the Bill of Rights after 1997, in this view, would therefore be a breach of China's commitment under Article 39 to ensure that the rights and freedoms of the Hong Kong people will not be restricted in any way which contravenes the Covenant.26 Any such hopes of continuity or carry-over, however, seem increasingly doubtful since China's threats to dismantle what it sees to be inconsistencies with the Basic Law have taken on even greater significance following the dispute over Governor Patten's reform proposals. China's adherence to the Covenant and, by extension, its acceptance of the Bill of Rights, will depend on how far Beijing is prepared to honour its commitments to respect Hong Kong's rights and freedoms. Beyond its treaty obligations to Britain under the Joint Declaration, which it has shown more than willing to interpret in its own interest, it must be remembered that China is not a signatory to the ICCPR, nor in the immediate future is it likely to be, and therefore is under no further pressing obligation to observe its terms.
Assuming its survival after 1997, the issue of the Bill's subordinate status to the Basic Law raises also its doubtful capacity to enable independent judicial interpretation on matters of constitutional importance. Article 158 of the Basic Law vests the power of final interpretation of the SAR constitution in the Standing Committee of the NPC, not in the Region's courts.
3.3
REVIEW OF LAWS
Section 3 of the Bill of Rights Ordinance provides that all pre-existing legislation which is inconsistent with the Ordinance is, to the extent of its inconsistency, repealed. Such a clause, in theory, is sufficient to strike off the provisions of any existing statute which are incompatible with the Bill of Rights. In practice, however, it is possible that many laws with provisions inconsistent with the Ordinance will continue to be used by the police and other law enforcement agencies until such time as they have been "authoritatively identified, and expressly pronounced to have been repealed". The identification and repeal of such legislation can be achieved in either of two ways first, by the authorities conducting a review of existing laws; and second, via the process of legal challenge and judicial review.
25
Article 11 of the Basic Law states that "the system for safeguarding the fundamental freedoms and rights of [Hong Kong's] residents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of the [Basic Law]".
26 Countdown to 1997, supra note 1, at 99.
26
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