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Human Rights and the Basic Law: The Onset of a New Constitutional Era?
Published online by Cambridge University Press: 28 February 2017
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- Type
- Hong Kong in Transition: Convergence or Divergence in the Implementation of the Joint Declaration
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- Copyright
- Copyright © American Society of International Law 1997
References
1 R v. Sin Yau Ming, 1 HKPLR 88 (1991).
2 Attorney General v. Lee Kwong-kut, 3 HKPLR 71 (1993).
3 Id. at 100.
4 On a number of occasions, the courts stated that the Bill of Rights did not provide any further protection which was not already provided for under the common law. Vice President Justice Litton, in dismissing the Bill of Rights as not having been engaged in Chim Shing Chung v. Commissioner of Correctional Services, 6 HKPLR 313, 322 (1996), stated that “it rarely happens that the Bill of Rights operates in an area of human activities not already covered by the laws of Hong Kong (that is, the common law, the rules of equity and statute law).” See also R v. Director of Immigration ex parte Hai Ho-tak, 4 HKPLR 324 (1994), where Justice Godfrey reminded us that “the court must hold the balance between individual and society as a whole, and maintain a sense of proportion in doing so. It should not impose unrealistic standards on the Hong Kong Government’s attempts to resolve the difficult and intransigent problems which Hong Kong faces.” For a more detailed discussion, see Johannes Chan, The Influence of International and Comparative Jurisprudence on the Interpretation of the Hong Kong Bill of Rights (presentation at the Lawasia Conference on Constitutions in an Inter-Dependent World, Macau, Nov. 18-20, 1996).
5 5 HKPLR 357 (HCt. 1995); 3 HKC 339 (CA 1995); 6 HKPLR 13 (PC 1996).
6 This decision was reversed by the Immigration (Amendment) Ordinance 1996.
7 6 HKPLR103(1996).
8 This means that the prosecution has not made out a case at the end of the prosecution’s case (either because of a lack of evidence or a failure to prove some essential elements) of an offense). The defendant therefore has no case to answer and the charge will be dismissed. An application for no case to answer is made at the end of the prosecution’s evidence and before the defendant testifies in court.
9 6 HKPLR237(1996).
10 [1991-92] LEGCO PROC. 916 (Jan. 23, 1991).
11 [1991-92] LEGCO PROC. 957 (Jan. 23, 1991).
12 The general rule in civil litigation is that the party who loses shall pay for the legal costs of the other party. There are various ways to assess the legal costs to be paid. The most common basis is party and party basis, which generally means that the winning party will be able to recover about 70 percent of his or her legal costs. Common fund basis is a more generous manner of calculating legal costs which will enable the winning party to recover more legal costs.
13 6 HKPLR313(1996).
14 Editorials Worrying Trend, South China Morning Post, Aug. 1, 1996, at 16.
15 The Court of Final Appeal Ordinance provides that there will be five judges on the Court of Final Appeal, to be chosen from two different lists. Four of them must be local judges, that is, existing serving judges or retired judges of Hong Kong. The number of overseas judges (those who have never sat in Hong Kong) is limited to not more than one. The Hong Kong Bar Association has pointed out that this arrangement is inconsistent with Article 82 of the Basic Law, which provides that the Court of Final Appeal may, at its own discretion, decide whether to invite any overseas judges to sit on the Court of Final Appeal and the number of such invited overseas judges. The current arrangement is a result of a Sino-British Agreement on the Court of Final Appeal, and the Hong Kong Bar Association criticized the agreement as being an executive interference with a discretion clearly conferred on the Court of Final Appeal by the Basic Law.
16 Chief Justice Yang, Vice President Justice Litton and Justice Liu. The statements of Chief Justice Yang and Justice Liu on the Bill of Rights are respectively reproduced in Andrew Byrnes & Johannes Chan, 3 Bill Rights Bull., Dec. 1995, no 4 app. B, D.
17 Shortly after his being elected as the first Chief Executive of the Hong Kong Special Administrative Region, Mr. Chee-hwa Tung was reported to have said that his government would focus on long neglected issues such as housing, education and the elderly, for our society had in the last ten years wasted too much time on politics. It is true that there are a lot to be done in the areas of housing, education and the elderly. However, what is striking of Mr. Tung’s remarks is that protection of human rights is not on his agenda and would probably come within his notion of “wasted politics.” For a more detailed discussion, see Chan, Johannes, Human Rights: From One Era to Another, in The Other Hong Kong Report 137-68 (Cheng, Joseph ed., 1998)Google ScholarPubMed.
18 For a comparative study of the Basic Law and the Bill of Rights, see Ghai, Yash, Freedom under the Basic Law, in The Hong Kong Bill of Rights: The Last Year? (Byrnes, Andrew & Hefferman, Ian eds., forthcoming 1998)Google Scholar.
19 See Sunday Times v. United Kingdom, 2 EHRR 245 (1979), adopted in Hong Kong Polytechnic University v. Next Magazine (No. 2), 7 HKPLR 41 (1996).
20 The best example will be R v. Town Planning Board ex parte Kwan Kong Company Ltd., 5 HKPLR 261 (1995).
21 See, e.g., Chim Shing Chung v. Commissioner of Correctional Services, 6 HKPLR 313 (1996); Attorney General v. Ming Pao Newspaper Ltd., 5 HKPLR 13 (CA 1995); Tarn Hing-yee v. Wu Tai-wai, 1 HKPLR 261 (1991). In contrast, some High Court judges adopted a more stringent standard of review: see, e.g., Chim Shing Chung v. Commissioner of Correctional Services, 5 HKPLR 570 (1995) (Sears, J.); Fok Lai Ying v. Governor in Council, 7 HKPLR 63 (1996) (Cheung, J.); Tarn Hing-yee v. Wu Tai-wai, 1 HKPLR 1 (1991) (Downey, DJ.), but these first instance decisions were all reversed on appeal.
22 See below. The Provisional Legislature will introduce amendments to the Societies Ordinance and the Public Order Ordinance to fill in the gap left behind by the non-adoption of the major amendments made to these Ordinances in 1992 and 1995, respectively, in order to bring them in line with the Bill of Rights. These amendments cover, inter alia, the law on public assemblies and public demonstrations.
23 For example, the Public officers (Variations of Conditions of Service) (Temporary Provisions) Ordinance 1993, which froze the Government’s policy to permit expatriate civil servants on contract terms to switch to local permanent terms so as to allow more time for the various unions and the Government to come to terms.
24 For instance, the Equal Opportunities Bill of 1994, which was defeated only after the Government had introduced the Sex Discrimination Ordinance and the Disability Discrimination Ordinance. The private member bill also forced the Government to consider whether legislation prohibiting discrimination on the grounds of race, sexual preference and family status should be considered.
25 See Chen, Albert, The Provisional Legislature of the SAR, 27 H. K. L. J. 1 (1998)Google Scholar.
26 Order No. 77 of 1995.
27 Chow Shui v. The Queen, [1979] HKLR 275.
28 The main features of the 1980 amendment were:
-
(a)
(a) “Meeting” was redefined to mean any gathering or assembly of persons convened or organized for the purpose of the discussion of issues or matters of interest or concern to the general public or a section thereof, but gatherings or assemblies convened or organized exclusively for social, recreational, cultural, academic, educational, religious or charitable purposes, or for the purpose of a funeral, or for the purposes of any public body or of carrying out any statutory duty were excluded.
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(b)
(b) A notification system for public meetings was introduced, that is, a public meeting may only be held if the Commissioner of Police is given seven days’ notification and the holding of the public meeting is not prohibited by him. No such notification is required if it is a meeting of not more than thirty persons, or if the meeting is held on private premises and the attendance does not exceed two hundred or the capacity of the premises, or if it is held in any registered educational establishment and approved by the management of such registered educational establishment.
-
(c)
(c) Public procession may only be held with a license from the Commissioner of Police, unless it is a public procession of not more than twenty persons or it is a public procession held solely for the purpose of a funeral. Although in theory there is a difference between a notification system (under which a public meeting may be held unless restrained) and a licensing system (under which no public procession may be held unless approved), in practice this is a difference without distinction. In both cases, the Commissioner of Police may prohibit the public meeting or public procession, and he may impose conditions as he thinks fit. He is also conferred wide powers to prevent the holding of, or to stop or to disperse, any public meeting or public procession.
29 For instance, while the organizer of a public meeting or public procession must give seven days’ notice or make an application for a license seven days in advance, there is no time limit under which the Commissioner of Police must signify his disapproval or grant a license. At the same time, if the public meeting or procession is advertised, this is a ground for disapproving its holding or refusal to grant a license. Last minute approval makes it extremely difficult for the organizer to publicize the public meeting or procession. There were also a number of cases where use of loudspeakers or other amplification devices was not permitted when the neighborhood was not disturbed by their use. There were also cases where the route of a public procession was rigidly defined and the police ordered its dispersal when some participants had completed the route whereas others were still gathering at the starting point waiting to set off.
30 Order No. 75 of 1992.
31 See, e.g., Mushkat, Roda, Freedom of Association and Assembly, in Civil Liberties in Hong Kong 153-85 (Wacks, Raymond ed., 1988)Google Scholar; Chen, Albert, Civil Liberties in Hong Kong: Freedom of Expression and Association, 19 H.K.L.J. 4-7 (1989)Google Scholar.
32 A triad society is any society which uses any triad ritual or which adopts or makes use of any triad title or nomenclature. The traditional form of triad society is highly structured and organized, similar to the Mafia. Triad societies in present times could be loosely organized gangs.
33 Johnson Stokes & Master v. Boucher, 1 HKLR 219 (1989).
34 Interestingly, in this case the Hong Kong Government was criticized for not taking action to comply with Article 23. In December 1996, when the Hong Kong Government introduced the Crimes (Amendment) Bill to enact the offences of secession and subversion, the Hong Kong Government was criticized for taking action to comply with Article 23 and hence pre-empting the Provisional Legislature in legislating on this matter.
35 This appears to be the situation in Canada: the Canadian Charter 1980 effectively supersedes the Canadian Bill of Rights 1960, though the latter still remains on the statute book. For further discussions, see Mushkat, Roda, Scrapping Hong Kong Legislation: An International Law Perspective, 27 H. K. L. J. 12-14 (1998)Google Scholar; Wesley-Smith, Peter, Maintenance of the Bill of Rights, 27 H. K. L. J. 15-16 (1998)Google Scholar. As to the continued application of the ICCPR to the HKSAR after 1 July 1997, see Mushkat, Roda, Hong Kong and Succession of Treaties, 46 Int’l & Comp. L. Q. 181-201 (1998)CrossRefGoogle Scholar; Chan, Johannes, State Succession to Human Rights Treaties: Hong Kong and the International Covenant on Civil and Political Rights, 45 Int’l & Comp. L. Q. 928-46 (1996)CrossRefGoogle Scholar.
1 W. Michael Reisman, Puerto Rico and the International Process: New Roles in Association 53-67 (ASIL Studies in Transnational Legal Policy No. 6, 1975).
2 Ruggie, John G., Territoriality and Beyond: Problematizirtg Modernity in International Relations, 47 Int’l Org. 139, 172 (1993)CrossRefGoogle Scholar.
3 Id. at 172.
4 Kim, Samuel S. & Dittmer, Lowell, Whither China’s Quest for National Identity?, in China’s Quest for National Identity 237, 258 (Kim, Samuel S. & Dittmer, Lowell eds., 1993)Google Scholar.