Hong Kong Basic Law on Human Rights

1
Hong Kong Basic Law on Human Rights
Background of the Legal System in Hong Kong
Human rights have constantly been a major issue in Hong Kong whereby it is not
necessary to be compared with China as protection of the human rights is not very certain in
the latter country. Hong Kong, as a British colony has a unique legal situation. This is
because Hong Kong was not just formal under the British influence, but it was also widely
autonomous (Horlemann, 101). This has seen the territory experience western traditions and a
tremendous influence of common law. Hong Kong has remained stable under a capitalist,
liberal, common law system and receives a high autonomy degree (Davis, 1).
Protection of Human Rights in Hong Kong
Other than the traditional Rule of Law, Hong Kong has adopted an international
standard for the protection of its citizens’ freedoms and rights. The Hong Kong Special
Administrative Region (HKSAR) courts play a vital role in embracing a liberal and wide
approach in order to achieve maximum protection of human rights.
The Rule of Law
Hong Kong’s legal system is the central source offering the protection of the liberties
of every individual. This system needs to uphold the rights of the citizens. (Wesley-Smith,
11). The Rule of Law can be defined as principle under the constitution providing
recommendation for acceptable and official behaviour. There will be the protection of civil
liberties as long the rule of law is followed by the legal system.

2
There are various principles which describe how the Rule of Law can and should be
put into application (Wesley-Smith, 12). For instance, it must be certain and predictable. This
law must be obeyed by all citizens and government authorities as its legitimacy will be
recognised if it applies equally to everyone, irrespective of their status in the society.
Wesley Smith states that the ideal legal system following the Rule of Law would have
the characteristics of neutrality, formality, rationality, impartiality, and impersonality
(Wesley-Smith 13). However, there must be a few or several exceptions to any principles,
and in this case, it is because their absolute maintenance is impossible (Wesley-Smith 17).
Even though the legal system of Hong Kong does not equally match an ideal of the principles
of the Rule of Law, it is all the same incorporated into the system and makes up an aspiration
(Wesley-Smith, 14).
Sources of human rights treaties and how they are put into application
Hong Kong’s written constitution only became significant after 1991, on the
enactment of the Hong Kong Bill of Rights Ordinance (Chan, 407-409). The ordinance has a
particular significance as it accommodates the International Covenant on Civil and Political
Rights (ICCPR) as applied in Hong Kong’s domestic law known as the Hong Kong Bill of
Rights, Part II (Young, 115). This means that the rights and freedoms of the residents of
Hong Kong are locally and domestically enforceable. The ICCPR has a wonderful impact
especially due to the fact that the courts rely on international judgments passed on reliance of
the treaty (Petersen, 34). The ICCPR acts as an intermediary between international standards
and the Hong Kong Basic Law. This has the impact to connect Hong Kong to a standard of
human rights internationally and it stays up to date with a universal approach (Petersen, 37).

3
Judges have also relied on the Convention against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment (CAT) and the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) in court (Petersen, 34). The CAT was
ratified and its application by the United Kingdom commenced in 1988 and later extended to
Hong Kong in 1992 (Byrnes/Chan, 316).
The Role of the Court
The courts’ main role in Hong Kong is to make sure that there is adherence to the rights and
freedoms which are fundamental under the Hong Kong Basic Law. The courts have to ensure
to position themselves as liberal and constitutional bodies for the protection of fundamental
rights and freedoms. The second theme of the courts is the sustenance of the previous
system’s continuity (Chan, 422). The Basic Law also offers a guarantee for a high judicial
independence degree (Ghai, 5). The Hong Kong courts have been accorded the discretion of
making final decisions, provided that internal arrangements are the concern.
The Basic Law
This law should not be perceived to be completely independent as superiority is placed on the
Constitution of the People’s Republic of China. However, no law that is enacted by the
HKSAR legislature shall contravene the Basic Law, as it is the Basic Law which has
precedence (Article 11, Basic Law).
Human Rights in Basic Law