Hong Kong Bill of Rights (Amendment) Bill 1998 (Minutes) 9 Feb 98

Provisional Legislative Council

PLC Paper No. CB(2)1473
(These minutes have been
seen by the Administration)

Ref : CB2/BC/9/97

Bills Committee on
Hong Kong Bill of Rights (Amendment)
Bill 1998

Minutes of Meeting held on Monday,
9 February 1998 at 10:45 am in Conference Room A
of the Legislative Council Building

Members Present :

Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon WONG Siu-yee
Hon David CHU Yu-lin
Hon Mrs Elsie TU, GBM
Hon Andrew WONG Wang-fat, JP
Hon YEUNG Yiu-chung
Hon LAU Kong-wah

Members Absent :

Hon James TIEN Pei-chun, JP
Dr Hon Raymond HO Chung-tai, JP
Dr Hon David LI Kwok-po, JP
Hon TSANG Yok-sing
Hon Kennedy WONG Ying-ho
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: 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 :

Mr Jimmy MA: Legal Adviser
Miss Anita HO: Assistant Legal Adviser 2
Mr Raymond LAM: Senior Assistant Secretary (2) 6

I. Matters arising - report by PLC Legal Service Division
(PLC Paper No. LS 106)

At the invitation of the Chairman, Assistant Legal Adviser 2 (ALA2) presented the Legal Service Division (LSD) report which was tabled at the meeting. The report was prepared at the request of the Bills Committee to advise whether there was an interpretation problem when section 3(3) and (4) and section 7 of the Hong Kong Bill of Rights Ordinance (BORO) were read together, and whether the drafting could be improved to enable both sections to remain in BORO should there be an inconsistency between section 3(3) and (4) and section 7. ALA2 advised that LSD's analysis was given in the paper.

2.In response to the Chairman, ALA2 stated that the drafting of sections 3(3) , (4) and 7 were apparently inconsistent. The apparent effect of the addition of subsections 3(3) and (4) to BORO would be that, from the date the addition took effect, the Ordinance applied also to legislation which affected relations between private individuals. However, it was difficult to predict the interpretation that would be adopted by the court. As to the question of whether section 3(3) and (4) should be repealed entirely or improved to retain the legislative effect, it would be a matter for the Bills Committee. If the Bills Committee wanted to retain the effect that BORO applies also to legislation which affects relations between private persons, it was technically feasible to improve the drafting of the section, say, by adding a otwithstanding clause?as suggested in paragraph 7 of the LSD Report.

3.In response to a member, ALA2 advised that it was legally feasible for both specific legislation and general legislation to co-exist in respect of inter-citizen relations. For example, specific legislation can set out clearly those circumstances of unlawful discriminatory acts that would be applied to inter-citizen relations. General legislation can serve as a safety net or the last resort to deal with circumstances not covered by specific legislation.

4.Mr LAU Kong-wah sought clarification as to whether there would be different legal effects in having only specific legislation or having both general and specific legislation to deal with inter-citizen relations. He considered that retaining a general provision such as section 3(3) and (4) in BORO could provide additional safeguards on inter-citizen relations, as long as there was no legal inconsistency between the general legislation and the specific legislation. The Chairman pointed out that with both specific and general legislation on inter-citizen relations, people might resort to general legislation in the event that specific legislation could not be invoked. The legal effect of just having specific legislation would be different from that of having both specific and general legislation. However, the Administration had indicated their intention to adopt the approach of putting in place specific legislation instead of a general provision to deal with inter-citizen relations.

5.The Legal Adviser (LA) who joined the meeting subsequently added that in addition to the option in paragraph 7 of the LSD Report, the apparent inconsistency might also be addressed by -

adding a subsection (5) to section 3 :
adding a 忛otwithstanding clause?at the beginning of section 7 :

the Government and all public authorities; and
any person acting on behalf of the Government or a public authority."

6.Mr David CHU commented that in addition to the alternatives mentioned by LA and ALA2, there was the alternative of repealing section 3(3) and (4) which was enacted in haste and was inconsistent with section 7. He added that allowing BORO to apply to inter-citizen relations would enable an individual with more financial resources and knowledge to take legal action against another individual, thus creating an unfair situation with regard to the application of BORO. He was in favour of repealing section 3(3) and (4) to remove any doubts on the coverage of BORO.

II. Meeting with the Administration

Mrs Elsie TU enquired whether the proposed amendment of Mr Anthony CHUA would resolve the legal uncertainty and whether it was in compliance of Article 39 of the Basic Law (BL). Senior Assistant Solicitor General (Basic Law) (SASG(BL)) pointed out that even with Mr CHUA's proposed amendment, the apparent inconsistency would remain unresolved. The word "invoked" proposed in Mr CHUA's amendment would leave room for further interpretation and give rise to legal uncertainty.

7.In response to Mr LAU Kong-wah, Deputy Secretary for Home Affairs (DSHA) stated that human rights in Hong Kong would not be reduced with the repeal of section 3(3) and (4). The existing mechanism already provided a safety net in that an individual could request the court to repeal legislation which was considered to be inconsistent with Article 39 of BL. In a recent appeal which took place after July 1997 involving Mainland-born children seeking right of abode in Hong Kong, Article 24 of BL was invoked instead of BORO.

8.Responding to Mr LAU Kong-wah's question of whether the Court of Appeal ruling in the case of TAM hing-yee vs WU Tai-wai (TAM vs WU) revealed inadequacies in BORO, Senior Assistant Solicitor General (Human Rights) (SASG(HR)) stated that the court ruling was made in 1991, since then specific legislation had been enacted in appropriate areas to address the protection of individuals' rights and legislation inconsistent with BORO had been amended even where such legislation concerned inter-citizen relations only.

9.Some members were concerned that the Government seemed to have adopted double standards by having general legislation to deal with disputes involving Government/public authorities and private individuals, while inter-citizen relations were to be dealt with by specific legislation. SASG (HR) explained that BORO was enacted in 1991 to fulfil the Government's obligations in relation to human rights protection. The BORO was necessary before 1 July 1997 when BL had not come into effect. After 1 July 1997, Article 39 of BL, which guaranteed the continued application of the International Covenant on Civil and Political Rights (ICCPR) to Hong Kong, had provided a safety net for protection of human rights in Hong Kong. SASG (BL) added that the Administration's policy of safeguarding inter-citizen relations through specific legislation was in full compliance with the requirements of ICCPR and Article 39 of BL. In this connection, the Chairman referred to Mr David CHU's comment at the previous meeting that as individuals had equal rights, BORO should not be used by an individual with more resources against another individual. He said that the introduction of general legislation to bind Government was based on the rationale that Government has more powers over individuals.

10.Mr LAU Kong-wah questioned the Administration's view that the apparent inconsistency of section 3(3) and section 7 could open a floodgate of unnecessary and frivolous litigation. He considered that even without section 3(3), individuals could still resort to Article 39 of BL to challenge existing legislation. SASG (BL) responded that while he could not rule out the possibility of invoking BL in inter-citizen litigation, there had not been any inter-citizen litigation invoking BL. He stressed that it would be up to the court to determine should such cases arise.

11.Quoting some examples of court actions involving inter-citizen relations in the United States, some members were of the view that the application of BORO to inter-citizen relations could lead to abuses by individuals who might bring frivolous court actions against other private citizens. DSHA shared the same view and said that he had also noted a number of frivolous court actions involving private citizens during his ten years' residence in the United States.

12.In response to a member, DSHA stated that the Administration would need to further examine the "notwithstanding clause" stated in paragraph 7 of the Legal Service Division's report before making any comment on it.

13.As regards a member's question on the submission of William K W LEUNG [Paper No. CB(2)969(01)], SASG(BL) said that the Administration was aware of the case mentioned in the submission and it was not a case between private individuals. The Administration was reviewing the relevant legislation.

14.DSHA reiterated that the Administration was opposed to the 1997 Amendment Ordinance which was passed in haste without detailed deliberation. He reassured members that the repeal of section 3(3) and (4) as proposed in the Bill was only a matter of technicality and would not affect human rights protection in Hong Kong. He added that Hong Kong had a very good track record in the protection of human rights.

III. Way forward

15.The Chairman invited members to indicate whether they were in support of the Bill which had been fully deliberated at three meetings. He reminded members that the suspension period of operation of the Hong Kong Bill of Rights (Amendment) Ordinance 1997 (the Amendment Ordinance) would expire on 28 February 1998.

16.Members indicated divergent views on whether to support the Bill. While Mrs Elsie TU, Mr David CHU and Mr WONG Siu-yee supported the Bill, Mr Andrew WONG and Mr LAU Kong-wah had reservation on the Bill. Mr Andrew WONG said that he would further examine the feasibility of re-drafting section 3(3) and (4) or section 7 to preserve the legislative intent of the Amendment Ordinance. Should he decide not to move any Committee stage amendments, he would vote against the Bill. Mr LAU Kong-wah said that the Democratic Alliance for Betterment of Hong Kong (DAB) would have to discuss the implications of the Bill before taking a decision. He stressed that any decision of DAB would be based on logical reasoning rather than political considerations.

17.Members agreed to recommend the resumption of Second Reading debate on the Bill on 25 February 1998. It was agreed that the report of the Bills Committee should be considered at the House Committee meeting on 13 February 1998. The Chairman reminded members that the deadline for Committee stage amendment would be 26 February 1998. He thanked members for their detailed examination of the Bill.

18.The meeting ended at 12:05 pm.

Provisional Legislative Council Secretariat
28 May 1998

Provisional Legislative Council

Bills Committee on Hong Kong Bill of Rights (Amendment) Bill 1998

Bills Committee on
Hong Kong Bill of Rights (Amendment)
Bill 1998