The Bill provides that Parts I and II of the
Crimes Ordinance, Part III of the Official Secrets
Ordinance, and the whole of the Societies Ordinance
are to be "interpreted, applied and enforced
in a manner that is consistent with Article 39
of the Basic Law".
| 2. |
Article 39 of the Basic Law provides
as follows.
"The provisions of the International Covenant
on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural
Rights, and international labour conventions
as applied to Hong Kong shall remain in
force and shall be implemented through
the laws of the Hong Kong Special Administrative
Region.
The rights and freedoms enjoyed by Hong
Kong residents shall not be restricted
unless as prescribed by law. Such restrictions
shall not contravene the provisions of
the preceding paragraph of this Article."
|
| Background to the provisions |
| 3. |
In the Consultation Document on Proposals
to implement Article 23 of the Basic Law,
the government stated that one of its guiding
principles was the need to meet fully the
requirements of the Basic Law, including
Article 39. |
| 4. |
The government was, and is, committed
to ensure that none of the provisions in
the Bill should criminalise acts in a manner
that would contravene Article 39. In response
to a question concerning this issue, a leading
UK human rights expert, Mr David Pannick
QC, advised that, for the avoidance of any
doubt, it may well be considered desirable
to state generally in the new law that nothing
in it is intended to contravene Articles
27 or 39 of the Basic Law. |
| Does the provision add anything? |
| 5. |
Article 11 of the Basic Law provides
that no law enacted by the legislature of
the Hong Kong SAR shall contravene the Basic
Law. This being so, it is clear that the
current Bill cannot be inconsistent with
Article 39 of the Basic Law. However, this
does not mean that the interpretative provisions
do not add anything. On the contrary, they
have two significant legal effects. |
| (a) Saving a provision
from invalidity |
| 6. |
This first is that, if any provision
in the legislation were inconsistent with
Article 39, the court might in the absence
of the interpretative provision refuse to
give effect to it. However, the provision
will require the courts to interpret the
provision in a manner that is consistent
with Article 39, thereby preserving its validity. |
| 7. |
The provision may be compared with section
3(1) of the UK Human Rights Act, which states
that ¡V
"so far as it is possible to do so, primary
legislation and subordinate legislation
must be read and given effect in a way
which is compatible with the Convention
rights."
|
| 8. |
An example of the application of section
3(1) of the English Act is found in the House
of Lords' decision in R v Lambert [2001]
3 WLR. The defendant was convicted of possessing
a controlled drug. It was a defence to that
offence for the accused "to prove" that he
neither knew of nor suspected nor had reason
to suspect the existence of any fact that
was an element of the offence. If that defence
required the accused to prove on the balance
of probabilities that an element of the offence
was absent, that would have contravened the
presumption of innocence guaranteed by the
Human Rights Act. The House of Lords avoided
that results by interpreting the defence
provision as imposing only an evidential
burden on the accused (i.e. a requirement
to produce some evidence that an element
of the offence was absent). |
| 9. |
The interpretation provisions in the
Bill could have a similar effect if, contrary
to the government's intentions, any other
provision in the Bill appeared to the court
to be inconsistent with Article 39. Unlike
the English interpretative provision, the
provisions in the Bill are not qualified
by any "so far as it is possible" requirement.
This is because the intent is that this legislation
should, in no circumstances, be inconsistent
with Article 39. By interpreting the legislation
in a manner that is consistent with Article
39, the courts will give effect to the legislative
intent, ensure that fundamental human rights
are protected, and prevent any provision
in the Bill from being invalid. |
| (b) Clarifying the relationship
with Article 23 |
| 10. |
Article 23 states that the Hong Kong
SAR shall enact laws "on its own" in certain
areas. The government is firmly of the view
that, in doing so, it must comply with other
parts of the Basic Law, including Article
39. |
| 11. |
In that respect, Mr David Pannick QC
has advised as follows.
"Concern has been expressed that Article
23 of the Basic Law might override Articles
27 and 39. I do not see how that conclusion
could be reached as a matter of interpretation
of the Basic Law. Article 23 imposes a
duty on the Hong Kong Special Administrative
Region to enact laws relating to specified
matters. But Article 23 says nothing about
the content of those laws. Nor does it
suggest that Hong Kong has power in this
context to override the rights conferred
in Chapter III of the Basic law (in particular
Articles 27 and 39). I can see no basis
on which the Basic Law could be interpreted
to mean that the content of the law enacted
to implement Article 23 is not subject
to Articles 27 and 39."
|
| 12. |
What would be the position if, contrary
to the above advice, someone tried to argue
that Article 23 authorizes or requires laws
to be enacted that are inconsistent with
Article 39? In the absence of the interpretative
provision, it could then be argued that legislation
implementing Article 23 need not be interpreted
in a manner that is consistent with Article
39. However, the presence of the interpretative
provision would make that argument untenable. |
| NPCSC Interpretation |
| 13. |
Under Article 158 of the Basic Law,
the power of interpretation of the Basic
Law is vested in the Standing Committee of
the National People's Congress. That power
has been exercised on only one occasion since
Reunification, in relation to the right of
abode issue. |
| 14. |
In response to concerns that this power
of interpretation might be resorted to in
other cases, the SARG has emphasized the
extraordinary circumstances surrounding that
right of abode interpretation, and has repeatedly
said that it would not lightly seek any further
interpretation. However, since it is impossible
to know what the future may hold, the SARG
has not undertaken never to seek any further
interpretation. |
| 15. |
In these circumstances, some have questioned
whether the SARG could seek an NPCSC interpretation
of Article 23 and, if so, whether that would
then cause the implementing legislation to
override fundamental human rights. |
| 16. |
It must be emphasized that, if the
Article 23 legislation were being enforced
in the courts (e.g. by way of a criminal
prosecution), it would be that legislation
that the courts would need to interpret.
It is difficult, if not impossible, to envisage
a situation in which the courts would need
to interpret Article 23 itself. The situation
is completely different from the right of
abode issue. |
| 17. |
In the right of abode cases, litigants
argued that domestic legislation should not
be enforced since it was inconsistent with
the Basic Law. The central issue was the
meaning of Article 24 of the Basic Law, which
confers rights on certain categories of people,
and whether domestic legislation was inconsistent
with those rights. There was therefore a
need to determine the meaning of Article
24. |
| 18. |
In the current context, it is difficult
to see how anyone could argue that the proposed
legislation is inconsistent with Article
23 of the Basic Law. Article 23 neither confers
nor denies rights. It merely requires the
Hong Kong SAR to enact certain laws "on its
own". Once those laws are enacted, it is
those laws and not Article 23 which Hong
Kong courts will need to interpret. The defendant
in a prosecution under the legislation could
not argue that Article 23 conferred on him
rights that the legislation purported to
take away. The prosecution could not argue
that Article 23 denied the defendant certain
rights that the legislation purported to
give him. There would therefore be no need
to determine the meaning of Article 23. |
| 19. |
Unlike Article 23, Article 39 does
confer rights on people. But the current
Bill does not purport to take away those
rights, nor would it be arguable that it
may accidentally contravene those rights.
The interpretation provisions ensure that
Article 39 will be fully complied with. Article
39 has been before the courts on numerous
occasions and it has never been suggested
that there is a need to seek an NPCSC interpretation
of it. Given the points made in paragraphs
10 to 12 above, one cannot envisage a situation
in which such an interpretation would be
needed in the current context. |
| 20. |
The NPCSC's power to interpret the
Basic Law is part of the new constitutional
order. However, that power is not relevant
to the consideration of the content of the
current Bill, or to the future interpretation
and enforcement of the legislation by the
courts. |
| Other human rights Articles
in Chapter III of the Basic Law |
| 21. |
The interpretative provisions refer
only to Article 39 of the Basic Law, as this
is the operative clause of the Basic Law
which entrenches the International Covenant
on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural
Rights, and other relevant international
labour conventions in our legal framework.
Through Article 39 of the Basic Law, these
international treaties on fundamental rights
and freedoms are given constitutional status
in Hong Kong. There are, however, other Articles
in the Basic Law relating to fundamental
rights. These include ¡V
| * |
Article 25 (equality before the law) |
| * |
Article 27 (freedom of speech, association,
demonstration, right to strike etc) |
| * |
Article 32 (freedom of religious
belief etc) |
| * |
Article 35 (access to the courts,
choice of lawyers etc). |
|
| 22. |
The fact that those other articles
are not referred to does not mean that the
rights guaranteed by them are not protected.
The Administration considers that the Bill
fully complies with those rights. However,
if that were not the case, the Bill would
not override them. On the contrary, the rights
guaranteed by the Basic Law would prevail
since, under Article 11 of the Basic Law,
no law enacted by the legislature of the
Hong Kong SAR shall contravene the Basic
Law. If any provision in the Bill were inconsistent
with any of those articles, the court would
not give effect to the provision to the extent
of that inconsistency. |
| 23. |
Similarly, if any power created by
the legislation were exercised in a manner
that was inconsistent with rights guaranteed
by the Basic Law, that exercise would be
invalid. |
| Application to the three Ordinances |
| 24. |
The interpretative provision applies
to Parts I and II of the Crimes Ordinance.
Those parts relate to treason and other offences
endangering the security of the State. Other
parts of that Ordinance deal with such things
as perjury, incest, forgery and sexual offences,
which do not call for such a provision. Moreover,
the extension of the provision to those parts
would probably be outside the scope of the
Bill. |
| 25. |
The provision also applies to Part
III of the Official Secrets Ordinance. That
part relates to unlawful disclosure, and
is the only part being amended by the current
Bill. The only other substantive part is
Part II, which deals with espionage, and
which is not being amended. |
| 26. |
The provision applies to the whole
of the Societies Ordinance. |
| Implications for other parts
and other Ordinances |
| 27. |
The fact that some parts of the Crimes
Ordinance and Official Secrets Ordinance,
and other Ordinances (apart from the Societies
Ordinance), do not contain the interpretative
provision will not prevent anyone from challenging
any provision as being inconsistent with
the human rights guarantees in the Basic
Law. As explained in paragraph 22 above,
if the provision is so inconsistent, the
court would not give effect to it. |
