Provisional Legislative Council
PLC Paper No. CB(2)1471
(These minutes have been
seen by the Administration)
Ref : CB2/BC/9/97
Bills Committee on
Hong Kong Bill of Rights (Amendment)
Minutes of held on Monday,
2 February 1998 at 10:45 am in Conference Room B
of the Legislative Council Building
Members Present :
Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon WONG Siu-yee
Hon David CHU Yu-lin
Dr Hon Raymond HO Chung-tai, JP
Hon Mrs Elsie TU, GBM
Hon TSANG Yok-sing
Hon YEUNG Yiu-chung
Hon Bruce LIU Sing-lee
Hon LAU Kong-wah
Members Absent :
Hon James TIEN Pei-chun, JP
Dr Hon David LI Kwok-po, JP
Hon Ronald ARCULLI, JP
Hon Andrew WONG Wang-fat, JP
Hon Howard YOUNG, JP
Public Officers Attending :
- Mr Peter LO
- Deputy Secretary for Home Affairs
- Mr John DEAN
- Principal Assistant Secretary for Home Affairs
- Mr Peter WONG
- Senior Assistant Solicitor General (Basic Law)
- Department of Justice
- Ms Roxana CHENG
- Senior Assistant Solicitor General (Human Rights)
- Department of Justice
Clerk in Attendance :
- Mrs Constance LI
- Chief Assistant Secretary (2) 2
Staff in Attendance :
- Miss Anita HO
- Assistant Legal Adviser 2
- Mr Raymond LAM
- Senior Assistant Secretary (2) 6
I. Election of Chairman
Hon LAU Hon-chuen was elected Chairman of the Bills Committee.
II. Meeting with the Administration
2.At the invitation of the Chairman, Deputy Secretary for Home Affairs (DSHA) briefed members on the Hong Kong Bill of Rights (Amendment) Bill 1998 (the Bill), highlighting the following -
- Subsections (3) and (4) of section 3 of the Hong Kong Bill of Rights Ordinance as added by the Hong Kong Bill of Rights (Amendment) Ordinance 1997 were not necessary for the following reasons:
- Since 1991, the Administration had carried out a comprehensive review on existing legislation and 40 pieces of amending legislation had been enacted to amend those provisions which were found to be inconsistent with the International Covenant on Civil and Political Rights (ICCPR), regardless of whether they applied to relations between Government/public authorities and citizens or inter-citizen relations.
- The provisions of ICCPR were entrenched through Article 39 of the Basic Law which provided that the rights and freedoms enjoyed by Hong Kong residents should not be restricted unless as prescribed by law and that such restrictions should not contravene, inter alia, the provisions of the ICCPR as applied to Hong Kong through the laws of the Hong Kong Special Administrative Region (HKSAR).
- Inter-citizen relations were safeguarded in Hong Kong by specific legislation, including anti-discrimination and privacy protection legislation.
- The Hong Kong Bill of Rights (Amendment) Ordinance 1997 (the Amendment Ordinance) had introduced uncertainty and confusion because the newly introduced section 3(3), when read with section 7, could give rise to three interpretations as stated in paragraph 11 of the PLC Brief on the Bill (File Reference : HAB/CR/1/34/1 Pt. 60). The existence of legal uncertainty and confusion was undesirable.
- According to a US State Department report on human right issued in January 1998, human rights and freedoms in Hong Kong had remained unchanged after 1 July 1997.
3.A member questioned the rationale of having a dual system in that there was general legislation, that is, the Hong Kong Bill of Rights Ordinance (BORO), to deal with disputes between Government/public authorities and private individuals while inter-citizen relations were governed by specific legislation. DSHA responded that BORO was enacted in 1991 after extensive public consultation. It was considered that the existence of a general legislation to bind the Government and public authorities would enhance public confidence locally and internationally on the protection of human rights in Hong Kong.
4.In response to a member, DSHA assured the Committee that the Administration would continue to identify and amend any legislation, including legislation involving inter-citizen relations, which were inconsistent with ICCPR. In drafting new legislation, the Administration would also ensure that all provisions complied with ICCPR.
5.As regards the practice in other jurisdictions, Senior Assistant Solicitor General (Basic Law) (SASG) informed members that the Bill of Rights of the United States and the Canadian Charter of Rights and Freedoms only bound the government and the legislature but did not govern inter-citizen relations as such. The bill of rights being developed by the United Kingdom was not intended to bind inter-citizen relations either. There was no bill of rights in Australia.
|6.On the question of whether any public consultation had been made before introducing the Hong Kong Bill of Rights (Amendment) Bill 1997 (the Bill), DSHA and Principal Assistant Secretary for Home Affairs explained that the Administration did not have any information on whether Mr LAU Chin-shek, the sponsor of the Bill, had conducted any public consultation. While a bills committee was formed to scrutinise the Bill, it was not activated due to the long list of bills committees pending activation towards the end of the term of the former Legislative Council (LegCo). Members noted that the Amendment Bill was finally presented to and passed by the former LegCo in June 1997 without deliberation by a bills committee. A member suggested the Secretariat circulate the relevant Hansard of the Resumption of Second Reading Debate on the Bill in June 1997 to members of the Bills Committee. (Post-meeting note : The Hansard and other background information were circulated to members vide PLC Paper No. CB(2)944.)
7.A member disagreed with the Administration's view that the Amendment Ordinance under discussion would introduce uncertainty and confusion, as it was a common law principle that legislation enacted at a later time prevailed over those enacted earlier. He added that the legislative intent of the Amendment Ordinance was clearly stated in the Explanatory Memorandum of the then Amendment Bill. The proposed repeal would remove the following protection offered by the Amendment Ordinance -
- any legislation found to be inconsistent with BORO would be repealed regardless of whether the legislation applied to relations between Government/public authorities and citizens, or inter-citizen relations; and
- in any inter-citizen litigation, either party could request the court to repeal a legislation on grounds of inconsistency with BORO.
The member enquired whether any legislation had been repealed or challenged during the period when the Amendment Ordinance was in effect. He stated that the Administration's Small House Policy, for example, was gender-biased. He added that the Administration should have lodged an appeal in the case of TAM Hing-yee v. WU Tai-wai. Another member took a different view and stated that as individuals were on a par with each other, the issue of exploitation of human rights in inter-citizen relations should not arise.
DSHA reiterated that the Administration had taken steps to amend any legislation found to be inconsistent with ICCPR, regardless of whether the legislation applied to Government/public authorities or inter-citizen relations. SASG added that there was no specific requirement under ICCPR on how the obligations in respect of inter-citizen relations should be implemented. Each jurisdiction could decide on the approach to be adopted to implement the ICCPR provisions. As far as HKSAR was concerned, the Administration considered it more appropriate to implement the ICCPR provisions on inter-citizen relations through specific legislation. He added that the Sex Discrimination Ordinance (SDO) contained exemption provisions on the Small House Policy which was then under review when SDO was enacted. On the case of TAM v. WU, it was inappropriate for the Administration to lodge an appeal because it was not a party in the dispute.
8.In response to a member, Assistant Legal Adviser 2 (ALA2) advised that the Amendment Ordinance was effective during the period 30 June 1997 to 17 July 1997. Both section 3(3), (4) and section 7 were in co-existence during this period. Should there be a case where these provisions were in issue, it would be up to the court to determine.
9.As regards a member's question on whether existing specific legislation on discrimination and personal privacy had the same legal effect as general legislation on inter-citizen relations, SASG stated that they only reflected different approaches for achieving the same objective of meeting the ICCPR requirements. Whether the legal effect would be the same would depend on the circumstances of each case.
10.A member was concerned that repealing the Amendment Ordinance might affect the international image of Hong Kong. He was of the view that the period of suspending the operation of the Amendment Ordinance should be extended and the introduction of the Bill deferred until the first LegCo of HKSAR was formed. DSHA responded that the Bill, which sought to remove existing legal ambiguity and inconsistency, was essential and necessary for the purpose of the terms of reference of PLC as set out in the Decision of the Preparatory Committee on 24 March 1996.
11.Referring to the Administration's argument that the legal confusion was caused by the drafting of the Amendment Ordinance, a member pointed out that the drafting of a member's bill was difficult because of the need to avoid the charging effect. In this connection, some members suggested that the Administration could improve the drafting of section 3(3) and (4) by introducing legislative amendments to BORO so that it would meet the original legislative intent and at the same time remove the legal confusion and ambiguity.
12.A member recalled that before BORO was enacted in 1991, the former LegCo had considered whether BORO should impose obligations on private citizens. In the end, it was agreed that BORO should not apply to inter-citizen relations or otherwise it would be wide open to abuse. She was therefore not in support of the Amendment Ordinance, as it would result in a large number of unnecessary and frivolous litigation. She suggested the Administration explain more clearly the background and the measures adopted in the protection of human rights, so that the public and the international community would understand the reason for the repeal.
III. Way forward
13.Members agreed that the following organisations/person should be invited to give their views on the Bill at the next meeting -
The Hong Kong Bar Association
The Law Society of Hong Kong
Mr LAU Chin-shek
The Chairman stated that interested parties/persons were also welcome to give their views on the Bill.
|The Chairman requested ALA2 to provide legal advice on the feasibility of retaining section 3(3) and (4) while amending them to remove legal uncertainty and confusion, and also on other issues to which the Administration could not provide a satisfactory answer.
IV. Dates of subsequent meetings
14.Members agreed to schedule further meetings as follows -
|6 February 1998
||To receive views of deputations and continue discussion with the Administration|
|9 February 1998
||To continue discussion with the Administration|
15.The meeting ended at 12:05 pm.
Provisional Legislative Council Secretariat
28 May 1998