Provisional Legislative Council
PLC Paper No. CB(2)1472
(These minutes have been
seen by the Administration)
Ref : CB2/BC/9/97
Bills Committee on
Hong Kong Bill of Rights (Amendment)
Minutes of Meeting
held on Friday, 6 February 1998 at 10:45 am
in the Chamber of the Legislative Council Building
Members Present :
Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon David CHU Yu-lin
Hon Mrs Elsie TU, GBM
Hon TSANG Yok-sing
Hon Andrew WONG Wang-fat, JP
Hon Kennedy WONG Ying-ho
Hon YEUNG Yiu-chung
Hon LAU Kong-wah
Members Absent :
Hon WONG Siu-yee
Hon James TIEN Pei-chun, JP
Dr Hon Raymond HO Chung-tai, JP
Dr Hon David LI Kwok-po, JP
Hon Howard YOUNG, JP
Hon Bruce LIU Sing-lee
Public Officers Attending :
- Mr Peter LO
- Deputy Secretary for Home Affairs
- Mr John DEAN
- Principal Assistant Secretary for Home Affairs
- Mr Peter WONG (Basic Law)
- Senior Assistant Solicitor General
- Department of Justice
- Ms Roxana CHENG (Human Rights)
- Senior Assistant Solicitor General
- Department of Justice
Attendance by Invitation :
Clerk in Attendance :
- Mr Anthony CHUA
- The Law Society of Hong Kong
- Mr Christopher CHAN
- Council Member
- Mr Raymond HO
- Council Member
- Mr Patrick MOSS
- Secretary General
- 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. Membership of the Bills Committee and background papers
The Chairman informed members that -
- Hon Ronald ARCULLI had withdrawn from the Bills Committee with effect from 2 February 1998; and
- Hon Kennedy WONG's late application for joining the Bills Committee had been approved under House Rule 23 on grounds of his absence from Hong Kong before the deadline for joining the Bills Committee.
2.Members noted that the following papers had been issued to members vide PLC Paper No. CB(2)944 to facilitate discussion at the meeting -
- Letter dated 3 November 1997 from Mr LAU Chin-shek to Secretary for Justice.
- Report by the former LegCo Ad Hoc Group to study the Hong Kong Bill of Rights Bill 1990.
- Hansard reports of the resumption of Second Reading debates on -
- Hong Kong Bill of Rights Bill 1990 on 5 June 1991; and
- Hong Kong Bill of Rights (Amendment) Bill 1997 on 27 June 1997.
- Newspaper cuttings relating to the Hong Kong Bill of Rights (Amendment) Bill 1998.
- The Hong Kong Bill of Rights (Amendment) Bill 1997 and the Explanatory Memorandum.
- The Hong Kong Bill of Rights Ordinance (Cap. 383).
II. Meeting with deputations
3.Members noted that pursuant to the decision of the Bills Committee on 2 February 1998, the Secretariat had written to invite the Hong Kong Bar Association, the Law Society of Hong Kong and Mr LAU Chin-shek to present their views to the Committee. The Hong Kong Bar Association and Mr LAU Chin-shek had replied that they would not be able to attend the meeting. Members also noted that Mr LAU had given consent for his submission to the Administration to be circulated to the Bills Committee. The Hong Kong Bar Association had also provided members with copies of its correspondence with the Administration and Miss Margaret NG on the subject.
- Meeting with Mr Anthony CHUA
[Paper No. CB(2)944(08)]
4.At the invitation of the Chairman, Mr Anthony CHUA presented his submission in his capacity as a barrister of the Supreme Court of Hong Kong. Quoting the case of TAM v. WU, the case of Hong Kong Bar Association v. Anthony CHUA (the CHUA case), the New Zealand Bill of Rights Act and the Bill of Rights of the Philippines, he highlighted the following -
- Mr CHUA proposed the replacement of section 3(3) and (4) of the Hong Kong Bill of Rights Ordinance (BORO) by the following new section 7(3) and (4):
- It is hereby declared to be the intention of the legislature that the provisions of this Ordinance, including the guarantees contained in the Bill of Rights, apply to all legislation, whether that legislation is invoked by the Government, public authorities or private persons, or whether it is invoked by any person claiming to be private persons.
- For the avoidance of doubt, subsection (3) shall come into operation upon commencement of the Hong Kong Bill of Rights (Amendment) Ordinance 1998 ( __ of 1998)
- The CHUA case illustrated the dangers of reliance on government practice rather than rule of law.
- In his view, the Bill of Rights of the Philippines applied to all laws/legislation/Bar Code invoked by private citizens. He had requested Attorney Rene V SARMIENTO, a drafter of the 1987 Philippine Constitution, for a written legal opinion on this.
5.In response to a member, Mr CHUA stated that he was opposed to the repeal of section 3(3) and (4) of BORO, if the Bills Committee did not adopt his alternative proposal of introducing a new section 7(3) and (4) as given in paragraph 4(i). He considered that there was inconsistency between section 3(3) and section 7 of BORO but the inconsistency could be reconciled. He was of the view that the proposed repeal was inconsistent with the International Covenant on Civil and Political Rights (ICCPR) provisions and would have a negative effect on the international image of the Hong Kong Special Administrative Region.
- Meeting with the Law Society of Hong Kong (LawSo)
[Paper No. CB(2)960(01)]
6.At the invitation of the Chairman, Messrs Christopher CHAN and Raymond HO presented the submission of LawSo and highlighted the following -
- LawSo took the view that any bill passed in haste without proper consultation, such as the Hong Kong Bill of Rights (Amendment) Bill 1997 (the Amendment Bill), should be reconsidered.
- Section 3(3) of BORO was unclear and was wide open to a number of interpretations.
- There was a conflict in meaning between sections 3(3) and 7 of BORO. This should be resolved for legal clarity and certainty. Allowing uncertainty in the legislation was undesirable and solicitors would not be able to advise their clients on the interpretation of the statute.
- LawSo considered that inter-citizen rights should be protected through the enactment of specific legislation, such as the Sex Discrimination Ordinance and the Disability Discrimination Ordinance.
- As the Administration had for some years been taking steps to amend any legislation found to be inconsistent with ICCPR, the implications of the Court of Appeal's decision on TAM v. WU was of academic rather than practical importance.
- In the Prevention of Bribery Ordinance, "public body" was clearly defined and included the legislature. "Public authority" should also be clearly defined in BORO.
- As the Amendment Ordinance was passed by the former Legislative Council after debate in June 1997, LawSo considered that it should not be repealed in haste. The repeal would also send out a wrong signal to the international community at a sensitive time. LawSo suggested that the suspension of operation of the Hong Kong Bill of Rights (Amendment) Ordinance 1997 (the Amendment Ordinance) should continue to allow time for public consultation on the re-draft of Section 3(3).
7.Responding to Mr Andrew WONG's question of whether the repeal of section 3(3) and (4) would be in contravention of the obligations of Hong Kong under ICCPR or Article 39 of the Basic Law, Mr Raymond HO said that the repeal of section 3(3) and (4) of BORO should not in itself amount to contravention of ICCPR or the Basic Law, as the main question was whether the Administration was fully discharging its obligations under ICCPR, whether by legislative means or other measures. From a legal point of view, section 3(3) was wide open to a number of interpretations and would not clarify or reverse the Court of Appeal's ruling on TAM v. WU. Mr Christopher CHAN added that if adequate human rights protection was provided in existing legislation, the repeal of section 3(3) and (4) would not be in contravention of ICCPR or Basic Law. In view of the interpretation problems created by section 3(3) and (4), LawSo considered that further research on the issue would be necessary.
8. Referring to the 40 amending legislation/subsidiary legislation introduced by the Administration since 1991 to amend legislation identified to be inconsistent with ICCPR, Mr LAU Kong-wah enquired whether LawSo considered that the 40 amending legislation/subsidiary legislation would offer the same protection as section 3(3) and (4). Messrs Raymond HO and Christopher CHAN responded that they were not in a position to comment on the issue, as LawSo's study of the 40 amending legislation by LawSo was not yet completed. In their view, a mechanism had been put in place to provide human rights protection.
9. Mr Andrew WONG was of the view that repealing section 3(3) and (4) was undesirable and unnecessary. He also sought LawSo's views as to why the Amendment Ordinance should not be allowed to take immediate effect. Mr Christopher CHAN reiterated that the purpose of section 3(3) was unclear and was open to interpretations. Such legal uncertainty was undesirable and prevented solicitors from being able to give correct advice to their clients. Mr Raymond HO added that it was unclear whether section 3(3) and (4) could meet the public expectation as this was not fully debated. He considered that public opinion should be sought and the overall human rights protection in Hong Kong reviewed before introducing amendments to BORO.
10.Mrs Elsie TU referred members to the report of the former LegCo Ad Hoc Group to study the Hong Kong Bill of Rights Bill 1990 [Paper No. CB(2)944(02)] and stated that the Administration initially intended BORO to cover inter-citizen relations. Such coverage was finally excluded after opposition from six organisations, including the Hong Kong Bar Association and LawSo. At that time, one legal professional even commented that the inclusion of inter-citizen relations would enable not only individuals but also public authorities to use BORO as a sword against private individuals and bodies. These organisation had expressed that inter-citizen rights should be protected through specific legislation.
11. The Chairman thanked Mr Anthony CHUA and LawSo for their views and submissions.
III. Meeting with the Administration
12.Deputy Secretary for Home Affairs (DSHA) made the following responses to the issues raised by deputations -
- The deputations shared the view that section 3(3) and (4) had introduced legal uncertainty and confusion.
- Specific legislation had been put in place to safeguard inter-citizen relations.
- The issue of whether inter-citizen relations should be covered in BORO was thoroughly debated in 1991 and the Legislative Council at that time considered that inter-citizen relations should most appropriately be safeguarded through specific legislation rather than BORO. Section 7 of BORO clearly reflected the legislative intent of BORO.
- The Administration was committed to rule of law. Aggrieved parties could also seek judicial review on administrative actions of the Government. The "dangers of government practice" as mentioned by Mr Anthony CHUA should not arise.
- The Bill was essential and necessary for the purpose of the terms of reference of the Provisional Legislative Council as set out in the Decision of the Preparatory Committee on 24 March 1996. The Administration therefore would not agree to continue suspending the operation of the 1997 Amendment Ordinance as suggested by LawSo.
13.A member referred to the Hansard of the resumption of Second Reading debate on the Hong Kong Bill of Rights Bill 1990 on 5 June 1991 and stated that it was considered at that time that inter-citizen relations should be excluded from BORO for the time being for further examination by the Administration. DSHA and Senior Assistant Solicitor General (Basic Law) (SASG) responded that Hansard of 5 June 1991 reflected that it was considered more appropriate for inter-citizen relations to be safeguarded through specific legislation. Since 1991, the Administration had been working in this direction and had enacted specific legislation, namely the Sex Discrimination Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance, and the Personal Data (Privacy) Ordinance. The Administration had also carried out a comprehensive and thorough review of existing legislation and amended laws found to be inconsistent with the ICCPR, regardless of whether they applied to relations between Government/public authorities and citizens or inter-citizen relations.
14.In response to a member, SASG stated that the main implication of the ruling in the appeal case of TAM v. WU was that BORO had no application to a dispute between private individuals. As regards the member's question of whether such ruling would be reversed if the case was brought to the Privy Council or the Court of Final Appeal, SASG responded that the Administration was not in a position to speculate the decision of the court.
15.Responding to a member, SASG confirmed that where legislation was repealed for inconsistency with BORO, the repeal only applied to relations between Government/public authorities and private individuals. The legislation would still be in force in respect of inter-citizen relations. Where necessary, the Administration would introduce appropriate amendments to address the issues arising therefrom.
IV. Date of next meeting
16.The Chairman reminded members that the next meeting had been scheduled for 9 February 1998 at 10:45 am to receive the Legal Service Division's report and continue discussion with the Administration.
17.The meeting ended at 12:15 pm.
Provisional Legislative Council Secretariat
28 May 1998