PLC Paper No. CB(2)991

Ref: CB2/BC/9/97

Paper for the House Committee meeting
on 13 February 1998

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

Purpose

This paper reports on the deliberations of the Bills Committee on the Hong Kong Bill of Rights (Amendment) Bill 1998.

The Bill

2. The Bill seeks to repeal the Hong Kong Bill of Rights (Amendment) Ordinance 1997 (107 of 1997) (Amendment Ordinance).

Background

3. Introduced by a former Legislative Councillor Mr LAU Chin-shek, the Amendment Ordinance was passed by the former Legislative Council on 27 June 1997. Prior to the enactment of the Amendment Ordinance, the Hong Kong Bill of Rights Ordinance (BORO) binds only the Government and public authorities, as stated in section 7 of BORO. The new section 3(3) introduced by the Amendment Ordinance however declares that BORO applies to all legislation irrespective of whether the legislation affects legal relations between Government, public authorities and private persons, or whether it affects only relations between private persons. Section 3(4) states that the amendment does not have retrospective effect and it affects legal relations as from the date of commencement, that is, 30 June 1997.

4. The Administration is of the view that the Amendment Ordinance was hastily passed by the former Legislative Council without the scrutiny of a Bills Committee. To allow time for the Administration to study the implications of the Amendment Ordinance, the Provisional Legislative Council (PLC) has agreed, through enacting the Legislative Provisions (Suspension of Operation) Ordinance 1997, to suspend the operation of the Amendment Ordinance up to 31 October 1997. The suspension period was further extended to 31 January 1998 and 28 February 1998, with the agreement of the PLC on 29 October 1997 and 21 January 1998 respectively.

5. The Administration has now completed its review on the implications of the Amendment Ordinance and considers that section 3(3) and (4), when read with section (7) of BORO, will give rise to legal uncertainty and confusion. The Administration therefore proposes to repeal section 3(3) and (4) in its entirety (section 3(1) and (2) were not adopted as part of the laws of Hong Kong on 1 July 1997).

The Bills Committee

6. At the House Committee meeting on 23 January 1998, a Bills Committee was formed to study the Bill. Chaired by Hon Ambrose LAU Hon-chuen, the Bills Committee has held three meetings with the Administration, one of which was to receive views of deputations. Written submissions made by Mr LAU Chin-shek and the Hong Kong Bar Association to the Administration were also considered.

7. The membership list of the Bills Committee is at Appendix I.

Deliberations of the Bills Committee

8. The main deliberations of the Bills Committee are set out in the following paragraphs.

Legal implications of retaining both section 3(3) and section (7) in BORO

9. The Administration considers that section 3(3), introduced by the Amendment Ordinance, could give rise to more than one interpretation if read with section 7 of BORO. According to the Government’s legal advisers, it is uncertain that section 3(3) in its present form could achieve the legislative intent of Mr LAU Chin-shek that, as from 30 June 1997, all pre-existing legislation inconsistent with the BORO would be repealed, irrespective of whether such legislation is invoked by Government/public authorities or private citizens. The Administration is of the view that as section 7 clearly states that BORO binds only the Government and public authorities, the apparent inconsistency of section 3(3) and section 7 could open a floodgate of unnecessary litigation.

10. To assist members’ deliberations, the Legal Service Division of the Provisional Legislative Council Secretariat has provided an independent opinion on the issue (PLC Paper No. LS106 dated 9 February 1998 at Appendix II).

11. Some members of the Bills Committee shared the views of the Administration. They are in favour of preserving the original legislative intent of BORO, that is, restricting its application to the Government and public authorities.

12. Some other members, however, have expressed doubts as to whether an interpretation problem really exists when section 3(3) and (4) and section 7 of BORO are read together. They are of the opinion that if inconsistency really exists, efforts should be made to improve the drafting to enable both sections to remain in the Ordinance. Alternatively, the matter could be left to the court to give a ruling.

13. Two members have indicated that they will further examine the feasibility of re-drafting section 3(3) and (4) or section 7 to preserve the legislative intent of Mr LAU Chin-shek’s Amendment Ordinance.

Effect of repealing section 3(3) and (4) in BORO

14. Some members are concerned that as the Bill seeks the approval of PLC to repeal the Hong Kong Bill of Rights (Amendment) Ordinance 1997, it would give a wrong signal to the international community about the work of PLC, since the Amendment Ordinance in issue was enacted through proper legislative process by the former Legislative Council. The Administration has responded that the Amendment Ordinance was passed without much public consultation and detailed scrutiny because of the tight schedule of the former Legislative Council towards the end of its last term. The Department of Justice has advised that, having regard to the legal uncertainty of the Amendment Ordinance and the imminent expiry of its suspension period, the Bill is essential and necessary for the purpose of the terms of reference of the PLC. The Administration therefore considers it undesirable to defer a decision on the issue .

15. Some members have sought clarification from the Administration as to whether the Bill would reduce human rights protection in Hong Kong as provided for in the International Covenant on Civil and Political Rights (ICCPR). Two members also raised concern about the anomaly created by the Court of Appeal ruling in Tam Hing-yee v Wu Tai-wai case in 1991.

16. On the adequacy of human rights protection, the Administration has assured members that Article 39 of the Basic Law already guarantees that the provisions of the ICCPR will continue to apply to Hong Kong. In addition, specific legislation on the protection of fundamental rights of private individuals, such as privacy protection and anti-discrimination laws, have been put in place since the enactment of BORO. The Administration considers that the existing legislative framework already provides sufficient safeguards on inter-citizen relations, the Amendment Ordinance is therefore unnecessary. In this connection, members note that the Bill of Rights of the United States and the Canadian Charter of Rights and Freedom do not cover inter-citizen relations.

17. With regard to the Court of Appeal ruling in Tam v Wu case, the Administration considers that the ruling in fact removed an uncertainty in law that, by virtue of section 7, BORO had no application to a dispute between private individuals. Whether this is accepted by the legal profession as correct interpretation of the legislative intent of BORO is of limited practical significance because the Government has since consciously amended those legislation which were inconsistent with the ICCPR, irrespective of whether the legislation applies to relations between Government (or public authorities) and citizens, or relations between private citizens. The Committee notes that 40 pieces of amending legislation have been enacted for this purpose, and that continued efforts will be made by the Government to identify and amend other legislation to comply with ICCPR.

18 Some members, however, consider that, apart from the specific legislation, a general provision in BORO could provide additional safeguards on inter-citizen relations. Some other members, nevertheless, are in favour of having specific legislation rather than an ambiguous provision in BORO on inter-citizen relations. In support of repealing section 3(3) and (4), some members consider that the Amendment Ordinance could lead to abuses by individuals who might bring frivolous court actions under this section against other private citizens.

Possibility of extending the suspension period of the Amendment Ordinance

19. The Bills Committee notes a suggestion of a member and the Law Society of Hong Kong to further extend the suspension period of the Amendment Ordinance to enable public consultation and further research on human rights legislation in Hong Kong. In view of the explanation given by the Administration as detailed in paragraphs 14 - 17 above, most other members are inclined to support the Administration’s proposal to resume Second Reading debate of the Bill as soon as possible.

Committee stage amendments

20. The Administration has not proposed any Committee stage amendments (CSA). Two members are considering moving CSAs to section 3(3) and (4) or section 7 of BORO to improve the clarity of these sections in order to retain both sections in BORO.

Recommendations

21. Members of the Bills Committee have divergent views on the Bill. Some members have reservations about repealing section 3(3) and (4) for reasons given in the above paragraphs.

22. The Bills Committee notes that the suspension period of the Hong Kong Bill of Right (Amendment) Ordinance 1997 will expire on 28 February 1998. The Bills Committee recommends the resumption of Second Reading debate on 25 February 1998.

Advice to be sought

23. Members are requested to support the resumption of the Second Reading debate of the Bill.

Provisional Legislative Council Secretariat
12 February 1998

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Appendix I

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

Membership List

Provisional Legislative Council Secretariat
4 February 1998

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Appendix II

PLC Paper No. LS106

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

The Legal Service Division is asked to advise whether there is an interpretation problem when subsections (3) and (4) of section 3 and section 7 of the Hong Kong Bill of Rights Ordinance (Cap. 383) ("the Ordinance") are read together and, if there is, whether the drafting could be improved to enable both sections to remain in the Ordinance.

2. For Members’ easy reference, subsections (3) and (4) of section 3 and section 7 are reproduced below:

3. Effect on pre-existing legislation

(3) 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 affects legal relations between the Government, public authorities and private persons, or whether it affects only relations between private persons.

(4) For the avoidance of doubt, subsection (3) shall come into operation upon commencement of the Hong Kong Bill of Rights (Amendment) Ordinance 1997 (107 of 1997).

7. Binding effect of Ordinance

(1) This Ordinance binds only -

(a) the Government and all public authorities; and

(b) any person acting on behalf of the Government or a public authority."

(N.B. Italics added)

3. Subsections (3) and (4) of section 3 were added by the Hong Kong Bill of Rights (Amendment) Ordinance (107 of 1997). Members may recall that subsections (1) and (2) were not adopted as part of the laws of Hong Kong on 1 July 1997. Before the addition of subsections (3) and (4), the Ordinance binds the Government and public authorities. The legislative intent could be confirmed by the Hansard of the 5 June 1991 sitting of the then Legislative Council and is also confirmed by the court.

4. With the addition of subsections (3) and (4) and when they are read with section 7, the two provisions do seem to be inconsistent. However, the apparent inconsistency could be analyzed as section 3(3) and (4) provides for the kind of legislation the Ordinance applies and section 7 determines the identity of persons who are bound by the Ordinance. If this view is correct it may be argued that there is no inconsistency between the two sections.

5. Even if both subsections (3) and (4) and section 7 are allowed to remain in the Ordinance, and their combined effect is in issue at a later stage, the court would try its best to give a meaning to the apparent inconsistency. One possible way the court might adopt is to treat subsections (3) and (4), being a later enactment, to be impliedly amending section 7 so far as is necessary to remove the inconsistency. Another possible way would be to use the assumption that later laws repeal earlier contrary laws. Having said that, it would be desirable to avoid uncertainty in the legislation and thereby avoid future litigation.

6. In our view, the apparent effect of the addition of subsections (3) and (4) would be, from the date the addition takes effect, the Ordinance applies also to legislation which affects relations between private persons. Members may recall that this is the second of the three possible interpretations in paragraph 11 of the PLC Brief.

7. To retain the said effect and to avoid uncertainties in interpretation, the drafting of section 3(3) could be improved by adding a "notwithstanding clause". The Hong Kong Bar Association has recommended the following drafting which could be adopted for that purpose:

"Notwithstanding section 7, this Ordinance applies to all legislation, irrespective of whether the parties relying on the legislation are the Government, public authorities or private persons, and irrespective of whether they are acting in public or private capacity."

8. As it now stands, the effect of the Bill would be to remove any effect section 3(3) and (4) may have on the scope of application of the Ordinance before its amendment by the Hong Kong Bill of Rights (Amendment) Ordinance. Whether this removal is necessary or should be supported is a policy matter for Members. Members may also note that the suspension of subsections (3) and (4) would expire on 28 February 1998. If the Bill is not passed by then and no further suspension is approved by the PLC, subsections (3) and (4) will start operation and will bring the effect as stated in paragraph 6 above.

Prepared by

Legal Service Division

Provisional Legislative Council Secretariat
9 February 1998