Bulletin Number Four 1986

o f the signatories. Whether the principle set out in Article 7 o f that International Covenant has been observed by the Administration to date is open to question. After all, seniority is a fact; competence is a matter o f opinion! No doubt the criteria for pro motion has always been subjective, and it w ill continue to be so. Some suggestions have been made that the con tents o f these two Covenants be incorporated in the Basic Law. Some others suggest that the whole text o f these two Covenants be attached to Chapter 3 (on Rights and Duties o f Hong Kong Inhabitants) o f the Basic Law in the form o f an annexure. The former suggestion is both impracticable and unnecessary - impracticable because it w ill make the text in Chapter 3 far too long and cumbersome; unnecessary because it w ill make the text o f Chapter 3 repetitive. Both Covenants set out general principles for the protection o f human life , human dignity and freedom and other fundamental rights. They are more in the nature o f rules o f guidance. Article 23 o f the International Covenant on Civil and Political Rights is a glaring example. It makes provisions for the right o f men and women to marry and to found a family. Section IV o f that Article requires States Parties to take appro priate steps to ensure responsibilities o f spouses during marriage without specifying what type o f responsi bilities. I f such general provisions were to be written into the Basic Law, one would be tempted to ask the question: ‘What are the responsibilities?' As has been said, the skeletion draft o f Chapter 3 (Rights and Duties) o f the Basic Law has listed all the basic human rights and freedoms along the guide lines o f these two Covenants — particularly the Covenant on Civil and Political Rights. For this reason, all that is necessary is to make provision in the Basic Law for preserving the force o f these two Covenants. S. Other Rights and Freedoms In accordance w ith the contents o f the Joint Declaration, the skeletion draft o f Chapter 3 to the Basic Law sets out a list o f rights and freedoms for Hong Kong inhabitants. These include the right to vote or to stand as candidates, freedom o f opinion, speech and publication, freedom o f assembly and demonstration, freedom o f association, to organize trade unions and to strike, freedom o f the person, the right o f privacy, freedom o f confidential communi cation, freedom o f movement, o f international travelling and o f migration, freedom o f choice in occupation, freedom to pursue academic study or creative talent, freedom to marry and to raise afamily without restriction, rights to have access to the courts to obtain redress and protection o f one's rights and freedom, to legal representation, to legal aid, to con fidentiality o f legal consultation, and rights to enjoy social welfare service. In addition, all persons in Hong Kong, inhabitants or otherwise, w ill have their legal and equitable rights as well as their common law rights protected. The indigenous inhabitants o f the New Territories shall preserve their original privileges. 4. Other Personal Rights and their Limitations Freedom o f the individual may be ensured by provisions in the Basic Law in various forms. Examples may be found in the constitutions o f various Common wealth countries. Of these, the recent enactment o f the Constitution Act 1982 o f Canada is an example. Various rights and freedoms, as contained in the International Covenant on Civil and Political Rights are set down, but such rights are qualified by Section I o f the Act which provides that: 'The Canadian charter o f rights and freedoms guarantees the rights and freedoms set out in it subject only to such reasonable lim its prescribed by law, as can be demonstrably justified in a free and democratic society.' It also leaves the function o f interpretation to the courts. Section 24(1) o f the Act provides that: 'Anyone whose rights or freedoms, as guaran teed by this charter, have been infringed or denied, may apply to a court o f competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circum stances.' Other nations have similar guarantees for free dom o f the individual, but w ith the qualifications that such rights and freedoms conferred, are subject to such restrictions as is deemed necessary or expedient in the interest o f the security o f the state, public order, or morality, or friendly relations w ith other countries. In some countries, the constitution contains provisions in derogation o f those rights and freedoms; as in the case o f the proclamation o f a state o f emerg ency w ithout giving any clear criterion as to the circumstances in which such derogation is permissible. Briefly glancing through the constitutions o f other countries, it appears that those o f Bermuda and Belize are nearest in content to the Joint Declaration, the International Covenants, and those provisions set out in the framework o f the skeletion draft, approved during the meeting o f the Drafting Committee last April. In those countries, the right to life is subject to lim it so as to permit imposition o f the death sentence by a court o f law, killing in the course o f self defence or prevention o f a serious crime or during a state o f war. Right to freedom o f person is subject to many other lim itations. One glaring example is the power o f arrest and detention in execution o f an order by a NEWS 11