The Bill of
Rights Ordinance
44. While in Hong Kong a number of concerns were
expressed to us about amendment of the Bill of Rights Ordinance
1991. The purpose of the Ordinance is to incorporate the provisions
of the ICCPR[85] into
Hong Kong law. The application of the Convention in Hong Kong
is guaranteed by Article 39 of the Basic Law.[86]
The ICCPR has applied to Hong Kong at the international level,
since it came into force in 1976, with the reservations entered
by the United Kingdom at the time of ratification (one of which
relates to the provision for periodic elections to be conducted
by universal and equal suffrage).
45. Certain aspects of the Ordinance were considered
by the Preparatory Committee to be inconsistent with the Basic
Law and have therefore been repealed.[87]
These changes did not, in the view of the Secretary for Justice,
affect the application in Hong Kong of the ICCPR, but amended
provisions relating to the Ordinance's over-riding power over
all other laws.
46. Shortly before the handover, the Legislative
Council had passed a Member's Bill which broadened the provisions
of the Ordinance to apply to relations between private persons.
It was passed without the normal scrutiny and, to allow time for
the Government to study its implications, legislation was enacted
to suspend its operation. The SAR Government subsequently decided
to repeal it on the grounds that to do so removed legal uncertainty.[88]
The Bill of Rights Ordinance 1991 was therefore restored to its
original purpose of binding the Government and public authorities
only.
47. This decision was criticised by the Hong Kong
Human Rights Monitor,[89]
which considered it to be in breach of the Basic Law and the SAR
Government's international obligations under the ICCPR. The United
Kingdom Government considers that the amendment "is unlikely
to have a significant effect on the human rights position of Hong
Kong people, because the original Bill of Rights text remains
intact",[90] but
added "we think that it would have been preferable for this
to have been dealt with by a properly elected legislature after
the May elections", mirroring similar concerns expressed
by pro-democracy politicians and civil rights campaigners.
Freedom of
the media
48. In July 1997, in its First White Paper, the Government
commented:[91]
"A touchstone for the
development of Hong Kong's rights and freedoms will be the situation
of the media. Hong Kong's press is among the freest in the world.
There are, however, indications of a growing tendency towards
self-censorship".
Six months later, the Government was materially more
optimistic, describing developments in the period as "relatively
encouraging". The Government saw no evidence of Chinese interference
in Hong Kong press freedoms, and commented on self-censorship
that "the signals were mixed. It is doubtful whether the
practice increased after the handover".[92]
49. Article XIX, commenting that media freedom "is
an essential element of democracy, good governance and accountability",[93]
reported that a 1997 survey had revealed a substantial degree
of self-censorship in reporting on China or on large Hong Kong
corporations. Hong Kong Human Rights Monitor drew attention to
a number of statements made by Chinese officials on press freedom[94]
and the Democratic Party commented[95]
"Freedom of expression and freedom of the press are long
grounded in Hong Kong and explicitly guaranteed in the Joint Declaration
and Basic Law. Unfortunately this most important check on the
government has suffered, both from self-censorship and overt censorship".
Article XIX also drew attention to a range of pre-reunification
legislation that could be used to restrict press freedom and which
needed reform.[96]
50. While in Hong Kong, we heard claims from media
sources that the diversity and freedom of the Hong Kong media
made it the strongest in Asia. Our own contacts in Hong Kong led
us to the view that there is some self-censorship, but that there
is a healthy demand from readers, both of the English-language
and Chinese-language press, for independent reporting. Publications
which provide it tend to prosper. In particular, newspaper editors
did not appear constrained in their presentation of issues by
the likely reaction of the HKSAR Government or the Chinese Government.
Mr Fatchett commented that the vigorous press debate over the
Adaptation of Laws (Interpretative Provisions) Ordinance was an
instance which demonstrated the continuing freedom of the Hong
Kong media.[97]
51. Concern has been expressed, though, over attacks
on the editorial independence of Radio Television Hong Kong (RTHK).
Article XIX argues that all possible influence should be brought
to bear to ensure the structural, operational and editorial independence
of RTHK.[98] The Hong
Kong Journalists Association calls for steps to formalise RTHK's
administration agreement through legislation, so that its durability
and function is not open to administrative discretion.[99]
Hong Kong Human Rights Monitor also drew attention to similar
concerns.[100] The
Government reports in its latest White Paper that the Director
of Broadcasting had announced that guidelines would be established
on RTHK programme standards. The guidelines "are likely to
be based on those observed by the BBC and other international
broadcasters".[101]
52. We urge the Government and others to exercise
particular vigilance over such developments. It will be important
to ensure that such guidelines are neither a disguised form of
censorship nor an inducement to self-censorship. Both the
local and the international media have an important part to play
in reporting on the continuing protection of rights and freedoms
in Hong Kong.
67 Cm. 3719, para. 13.7, Cm. 3831, paras. 13.6-9 and
Cm. 4019, paras. 13.3 to 13.7. Back
68
Appendix 3, p.34 (Hong Kong Human Rights Commission), Appendix
5, pp.47-8, 50-54 (Hong Kong Human Rights Monitor). Back
69
Q59. Back
70
Q63. Back
71
Cm. 3831, paras. 13.10-11. Back
72
Hong Kong SAR: The First 12 Months, p.5. Back
73
See also Q71. Back
74
Appendix 5, pp.48-50. Back
75
Cm. 4019, para. 13.6; Appendix 3, p.34. Back
76
Cm. 4019, para. 13.6. Back
77
See Appendix 2, p.32. Back
78
Appendix 5, p.54. Back
79
There was a substantial increase in the number of Members' bills,
both presented and enacted, in the last session of the pre-handover
Legislative Council, see Appendix 7, p.72. Back
80
Appendix 7, pp.63-64. Back
81
Appendix 7, pp.68-72. Back
82
Appendix 3, p.36. Back
83
Appendix 5, p.57. Back
84
Cm. 3831, para. 2.5. Back
85
International Convention on Civil and Political Rights. Back
86
See also Article XIII of the Joint Declaration. Back
87
Ev. p.8. Back
88
Appendix 5, p.46. Back
89
Appendix 7, p.53. Back
90
Cm. 4019, para. 13.9. Back
91
Cm.3719, para. 13.5. Back
92
Cm. 3831, paras. 13.12 to 13.15. Back
93
Appendix 2, p.33. Back
94
Appendix 5, pp.55-6. Back
95
Appendix 6, p.60. Back
96
Appendix 2, p.32. Back
97
Q51. Back
98
Appendix 2, p.33. Back
99
Appendix 4, p.38. Back
100
Appendix 5, p.56. Back
101
Cm. 4019, para. 13.12. Back
