Comprehensive Analysis: Hong Kong Basic Law on Human Rights

This essay provides an in-depth analysis of the Hong Kong Basic Law's influence on human rights. It begins with a historical overview of Hong Kong's unique legal situation as a former British colony with a high degree of autonomy, and its adoption of a common law system. The essay examines the protection of human rights, including the role of the courts in upholding fundamental rights and freedoms, and the application of the Rule of Law. It also explores the sources of human rights treaties, such as the ICCPR and CAT, and how they are incorporated into Hong Kong's domestic law. The essay further discusses the role of the courts in safeguarding rights and the restrictions on these rights under the Basic Law, including Article 39 and the proportionality principle. It concludes by emphasizing the significance of the Basic Law in balancing rights and duties within the 'one country, two systems' framework and highlights the courts' role in protecting human rights.

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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.

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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).

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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

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The Basic Law guarantees a wide variety of political and civil rights as well as economic,
social and cultural rights. This means that there is an assurance of a great balance of rights,
duties, especially since the Basic Law also considers economic and social conditions (Ghai,
422).
Restrictions on Rights
There is no general scheme provided by the Basic Law for rights’ limitations (Ghai, 424). It
is therefore difficult to make a determination on the scope and sphere of restrictions. The
court had to develop some general principles to consider restrictions of the rights and
freedoms. Different approaches are used to apply the restrictions that have been established.
The Chief justice asserted that the intention of the Basic Law was to entrench constitutionally
the rights and freedoms in chapters III, rights and freedoms which are essential to Hong
Kong’s separate system, and the courts have the duty to safeguard and protect them by the
adoption of a generous approach to the interpretation they make (Gurung case, 2002). This
means that more importance and emphasis is placed in the protection of human rights and not
for the government to place restrictions on these rights.
There are certain human rights whose instruments are entrenched. Under Article 39 of the
Basic Law, no restrictions on rights and freedoms may be applied or imposed that are in
contravention of these instruments (Ghai, 6).
Scope of Article 39 of the Basic Law and the status of ICCPR
It is the duty of the Government of Hong Kong to incorporate the ICCPR into
domestic law as it is applied to Hong Kong. According to the article, the ICCPR can be a
source of domestic law when the objective is to test restrictions which are constitutionally
permissible on rights and freedoms (Lau Kwok case, 2003). Therefore, any restrictions have

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to be prescribed by the law and must not contravene the implementation of the ICCPR or
even the ICESCR.
If a restriction is in breach of the Bill of Rights, then it will also have breached Article
39 of the Hong Kong Basic Law. This is because it would be in contravention of ICCPR as
applied in Hong Kong (Ghai, 445). Where a right overlaps in the Basic Law and in the
ICCPR as well as, similar restrictions should apply to the right or freedom (Young, 124).
However, reservations that are attached to rights of the ICCPR should not restrict the rights
enjoyed under the Basic Law, since the instruments were made by two separate sovereign
states (Young, 127).
Another approach stipulates that Basic Law rights are understood as autonomous
rights, thus restrictions are to be left for interpretation and they depend on the nature of the
rights in question (Gurung, 2002, par. 33). This approach has however been countered with
the criticism that it does not decide clearly when and how rights in the Basic Law may and
can be subject to restriction (Young, 131). This therefore means that Article 39 of the Basic
Law under Article 39 should not be generally interpreted as a limitations clause and as a
barrier to standards of human rights, but rather as a constitutional safeguard (Young, 128).
There are certain tolerance points of rights and freedoms whose interference cannot be
justified.
Position of the courts
In the Bahadur case (Gurung, 2002, p. 480) the Court of Final Appeal was required to
decide the range of the human rights protection, and under which justified conditions
restrictions. In this case, the court decided that the proportionality principle should apply to
restrictions on the right of entry and travelling (Gurung, p. 480, par. 33).

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The legislative objective must be sufficiently important for the justification of limiting
a right, it must be rationally connected to the measures and such restriction must be only
necessary for the achievement of the objective. Courts have emphasized the importance of a
generous interpretation of rights which are fundamental (Leung Kwok Hung v. HKSAR,
2005).
The result has been that any restriction on the fundamental rights must be prescribed
by law and also be necessary so as to protect some legitimate interests (Chan, 423). For the
definition of the reach of the necessity, the test of proportionality in a democratic society
must apply (Leung Kwok case, 2005, pars. 182&185). Such restriction is justifiably
proportional if it has a purpose that is legitimate and it does not involve the intervention in
the right excessively in order to accomplish its purpose. The legitimate purpose may be the
protection of public order and crime prevention.
Conclusion
The concept of “one country, two systems” relies on the separation coexistence of two
economic, political, social and legal systems all under one sovereign. The Hong Kong Basic
Law connects and yet separates these two systems at the same time. Rights and freedoms
have been the foundation for Hong Kong’s economical success. The courts’ generous
approach of interpreting the Basic Law’s rights and freedoms is very vital. There is also the
recognition of the importance to safeguard rights rather than restricting them.

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References
Byrnes/Chan (1996) Public Law and Human Rights
Chan/Lark, the Hong Kong Basic Law
Constitution of the Republic of China
Davis, Constitutional Confrontation in Hong Kong
Ghai, Hong Kong’s New Constitutional Order
Ghai, Litigating the Basic Law
Gurung Kesh Bahadur v. Director of Immigration (2002) 5 HKCFAR 480
Hong Kong Basic Law
Horlemann, Die Ruckgabe Hongkongs und seine neue Verfasung
Lau Kwok v. Secretary for Justice (2003) HKEC711
Petersen, Embracing universal standards
Wesley-Smith, Protecting civil liberties in Hong Kong
Wesley-Smith, The Hong Kong Legal System.