Urgent Business: Hong Kong, Freedom of Expression and 1997
3.4
THE IMPACT OF THE BILL OF RIGHTS
The first 18 months of operation of the Bill of Rights has brought mixed results. In the courts, there have been a few notable judgments repealing inconsistent legislation, although none has concerned freedom of expression and Article 16. The judicial impact has been felt most strongly in the criminal law, particularly in the areas of statutory presumption of guilt and undue delay in prosecution." In September 1991 the Court of Appeal handed down its first decision on the Bill of Rights, striking down provisions in the Dangerous Drugs Ordinance which it saw as violating the requirement of the presumption of innocence under Section 11(1) of the Bill of Rights. Similar decisions have been handed down on provisions of the Summary Offences Ordinance.
. Most challenges to date have concerned what are ostensibly civil rights. As yet there are no clear indications how challenges under sections which seek to protect rights more political in nature might be resolved. These matters, of course, rest entirely with the judiciary, and with the interpretations judges may choose to give the written text of the Bill.
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On a more pessimistic note, the government's less than enthusiastic attitude towards the new legislation continues to weaken its impact considerably. Its reluctance to undertake a thorough review of legislation is of course symptomatic of this attitude, though the administration has hindered the penetration of the Bill of Rights in other ways: by refusing to set up an independent Human Rights Commission; by failing to provide adequate education for the Legal Department and judiciary on the Bill; and by its reticence in approving much needed extra financial support for legal aid. Without adequate legal aid, the prohibitive costs of bringing cases to court will mean probably that any challenges to inconsistent legislation are likely to be brought only when the authorities invoke laws in breach of the Bill of Rights and then only when such breaches are clear and stand a good chance of being overturned in the courts.
Most importantly, while a human rights culture slowly develops within the legal community and in part elsewhere, the government itself has failed to embrace this culture. Indeed, not only does the government seem deliberately to defend statutory powers in the courts, which to many experts seem indefensible in the spirit of the Bill of Rights, it continues to put forward legislation for enactment containing provisions which appear to be inconsistent with the Bill of Rights.
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33, Johannes Chan, "Freedom of Expression: Censorship and Obscenity" in Raymond Wacks (ed.) Civil Liberties in Hong Kong (Hong Kong: Oxford University Press, 1988), 17.
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One such controversial piece of legislation is the 1992 amendment to the Societies Ordinance which gives powers to enter premises of any society without a search warrant to the Commissioner of Societies, who is also the Commissioner of Police.
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