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National Security (Legislative Provisions) Bill :
Issues relating to Article 39 of the Basic Law

This paper explains:
(1) whether under BL 84 the HKSAR courts are bound by English precedents that were decided before and after the Reunification; and
(2) the relevance of international human rights jurisprudence to the adjudication of cases by the HKSAR courts in light of the local cases of Sin Yau Ming and Chong Fung Yuen;
(3) the extent to which provisions in the ICESCR are aspirational and not binding; and
(4) whether requirements in the international covenants and conventions referred to in BL 39 which have not been incorporated in local legislation are not applicable to Hong Kong.

I. Binding force of English precedents

Relevant Basic Law provisions

2. BL 84 provides that:

"The courts of the HKSAR shall adjudicate cases in accordance with the laws applicable in the Region as prescribed in Article 18 of this Law and may refer to precedents of other common law jurisdictions."

3.

BL 18 provides that the laws in force in the HKSAR shall be the Basic Law itself, laws enacted by the HKSAR legislature, and "the laws previously in force in Hong Kong" as provided for in BL 8. It also provides for the application of a limited number of national laws in Annex III to the Basic Law.

4. "The laws previously in force in Hong Kong" are defined in BL 8 to include the common law, rules of equity, ordinances, subordinate legislation and customary law to the extent they do not contravene the Basic Law and have not been amended by the HKSAR legislature.

Are the pre-Reunification English cases binding?

5. It is clear that if the pre-Reunification English cases are part of the common law "previously in force in Hong Kong" under BL 8, they were preserved by BL 18 as "the laws in force in the HKSAR" in accordance with which the HKSAR courts shall adjudicate cases under BL 84.
6. Prior to 1 July 1997, the Hong Kong courts were bound by decisions of the Judicial Committee of the Privy Council and, in practice, by decisions of the House of Lords on questions of English law applicable in Hong Kong. Hong Kong judges have never been formally bound by decisions of the English Court of Appeal or of other English courts, although in practice they were generally respected and followed.1
7. As for the post-Reunification position, the Court of Appeal has held in Bahadur v Secretary for Security [2002] 2 HKC 486 at 495B - D that "decisions of the Privy Council delivered before the resumption of sovereignty over Hong Kong by the PRC continue to be binding since the resumption of sovereignty on all courts of the HKSAR, save for the Court of Final Appeal. That is because decisions of the Privy Council represented part of the common law of Hong Kong. They were therefore part of the laws enforced in Hong Kong when the Basic Law came into operation and were preserved by art 8 of the Basic Law."

Are the post-Reunification English cases binding?

8. BL 84 expressly authorizes the HKSAR courts to "refer to precedents of other common law jurisdictions". Professor Yash Ghai opines that BL 84 "may be cited to show that the Hong Kong common law was intended to be contrasted with other systems, including the English." 2
9. The Court of Final Appeal has replaced the Privy Council as the highest court of the HKSAR since the Reunification. Therefore, the Privy Council's decisions made after 1997 are not binding. The Court of Final Appeal assumes the role as the fountain of common law for Hong Kong.
10. Although English precedents are no longer binding, it is clear that the HKSAR courts will continue to seek guidance from them, especially those of the Privy Council and the House of Lords which are influential throughout the common law world.

II. Relevance of international human rights jurisprudence

11. In R v Sin Yau-ming (1991) 1 HKPLR 88, it has been held that in interpreting the Bill of Rights Ordinance considerable assistance could be gained from the decisions of common law jurisdictions with a constitutionally entrenched Bill of Rights (in particular Canada and the United States), from the general comments and decisions of the Human Rights Committee under the ICCPR and the Optional Protocol to the ICCPR, and from the jurisprudence under the European Convention on Human Rights. The Court of Appeal has made it clear that although none of these are binding, in so far as they reflect the interpretation of articles in the ICCPR and are directly related to Hong Kong legislation, these sources are of the greatest assistance and should be given considerable weight.
12. The Court of Final Appeal has not in its judgment of Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 discussed the relevance of international human rights jurisprudence, but it has reaffirmed that "the courts should give a generous interpretation to the provisions in Chapter III [of the Basic Law] that contain constitutional guarantees of freedoms that lie at the heart of Hong Kong's separate system".

III. Extent to which ICESCR is aspirational and not binding

13. The International Covenant on Economic, Social and Cultural Rights, as applied to Hong Kong, is binding on the HKSARG as a matter of international law.
14. Article 2.1 of ICESCR provides as follows.
"Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures." (emphasis added)
15. The question of the extent to which ICESCR may be "promotional" or "aspirational" was addressed in paragraphs 5 to 22 of a paper submitted to the AJLS Panel on 18 September 2001 (see Annex). As that paper emphasizes, that question is ultimately for the HKSAR courts to decide. The current Bill does not, and cannot, change the nature and extent of the applicable international obligations referred to in Article 39 of the Basic Law.

IV. International obligations not incorporated in domestic legislation

16. If any of the international obligations referred to in Article 39 of the Basic Law have not been incorporated in domestic law, they nevertheless remain binding on the HKSARG at the international level. The Government must comply with those obligations in devising its acts and policies, or it will be in breach of them.

1 For detailed discussion, see Peter Wesley-Smith, An Introduction to the Hong Kong Legal System (3rd ed., 1998), pp 84 - 85.

2 Yash Ghai, Hong Kong's New Constitutional Order, (2nd ed., 1999), p 368.

Department of Justice
April 2003



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Last Updated : 29-4-2003
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