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Received: by ahkcus.org (4.1/AHKCUS-Gateway)
id AA08929; Wed, 12 Jun 91 12:15:49 CDT
Date: Wed, 12 Jun 91 12:15:49 CDT
From: aaron (Aaron Y.T. Cheung)
Message-Id: <9106121715.AA08929@ahkcus.org>
To: members@ahkcus.org
Subject: Hong Kong Bill of Rights Ordinance 1991 (full text)
[The following document has been manually typed in from fax messages;
spelling and contextual accuracies are subject to typing errors and/or
omissions; please consult original text in print when necessary. /aaron.]
===============================================================================
H O N G K O N G
____________________________
ORDINANCE NO. 59 OF 1991
I assent.
( L.S. )
David WILSON,
Governor.
6 June 1991
An Ordinance to provide for the incorporation into the law of Hong Kong of
provisions of the International Covenant on Civil and Political Rights
as applied to Hong Kong; and for ancillary and connected matters.
[8 June 1991]
Enacted by the Governor of Hong Kong, with the advice and consent of
the Legislative Council thereof.
PART I
PRELIMINARY
1. Short title and commencement
(1) This Ordinance may be cited as the Hong Kong Bill of Rights
Ordinance 1991.
(2) This Ordinance shall come into operation on 8 June 1991.
2. Interpretation
(1) In this Ordinance, unless the context otherwise requires--
"article" means an article of the Bill of Rights;
"Bill of Rights" means the Hong Kong Bill of Rights set out in Part II;
"commencement date" means the date on which this Ordinance comes into
operation;
"legislation" means legislation that can be amended by an Ordinance;
"pre-existing legislation" means legislation enacted before the
commencement date.
(2) The Bill of Rights is subject to Part III.
(3) In interpreting and applying this Ordinance, regard shall be had
to the fact that the purpose of this Ordinance is to provide for the
incorporation into the law of Hong Kong of provisions of the International
Covenant on Civil and Political Rights as applied to Hong Kong, and for
ancillary and connected matters.
(4) Nothing in this Ordinance shall be interpreted as implying for
the Government or any authority, group or person any right to engage in
any activity or perform any act aimed at the destruction of any of the
rights and freedoms recognized in the Bill of Rights or at their
limitation to a greater extent than is provided for in the Bill.
[cf. ICCPR Art. 5.1]
(5) There shall be no restriction upon or derogation from any of
the fundamental human rights recognized or existing in Hong Kong pursuant
to law, conventions, regulations or custom on the pretext that the Bill
of Rights does not recognize such rights or that it recognizes them to
a lesser extent. [cf. ICCPR Art. 5.2]
(6) A heading to any article does not have any legislative effect
and does not in any way vary, limit or extend the meaning of the article.
3. Effect on pre-existing legislation
(1) All pre-existing legislation that admits of a construction
consistent with this Ordinance shall be given such a construction.
(2) All pre-existing legislation that does not admit of a
construction consistent with this Ordinance is, to the extent of
the inconsistency, repealed.
4. Interpretation of subsequent legislation
All legislation enacted on or after the commencement date shall,
to the extent that it admits of such a construction, be constructed
so as to be consistent with the International Covenant on Civil and
Political Rights as applied to Hong Kong.
5. Public emergencies
(1) In time of public emergency which threatens the life of the
nation and the existence of which is officially proclaimed, measures
may be taken derogating from the Bill of Rights to the extent
strictly required by the exigencies of the situation, but these
measures shall be taken in accordance with law.
(2) No measure shall be taken under subsection (1) that--
(a) is inconsistent with any obligation under international
law that applies to Hong Kong (other than an obligation
under the International Covenant on Civil and Political
Rights.);
(b) involves discrimination solely on the ground of race,
colour, sex, language, religion or social origin; or
(c) derogates from article 2, 3, 4(1) and (2), 7, 12, 13
and 15.
[cf. ICCPR Art. 4]
6. Remedies for contravention of Bill of Rights
(1) A court or tribunal--
(a) in proceedings within its jurisdiction in an action for
breach of this Ordinance; and
(b) in other proceedings within its jurisdiction in which
a violation or threatened violation of the Bill of Rights
is relevant,
may grant such remedy or relief, or make such order, in respect of
such a breach, violation or threatened violation as it has power to
grant or make in those proceedings and as it considers appropriate
and just in the circumstances.
(2) No proceedings shall be held to be outside the jurisdiction
of any court or tribunal on the ground that they relate to the Bill
of Rights.
7. Binding effect of Ordinance
(1) This Ordinance binds only--
(a) the Government and all public authorities; and
(b) any person acting on behalf of the Government or a
public authority.
(2) In this section--
"person" includes any body of persons, corporate or unincorporate.
PART II
THE HONG KONG BILL OF RIGHTS
8. Hong Kong Bill of Rights
The Hong Kong Bill of Rights is as follows.
Article 1
Entitlement to rights without distinction
(1) The rights recognized in this Bill of Rights shall be
enjoyed without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.
(2) Men and women shall have an equal right to the enjoyment
of all civil and political rights set forth in this Bill of Rights.
[cf. ICCPR Arts. 2 & 3]
Article 2
Right to life
(1) Every human being has the inherent right to life. This
right shall be protected by law. No one shall be arbitrarily
deprived of his life.
(2) Sentence of death may be imposed only for the most
serious crimes in accordance with the law in force at the time of
the commission of the crime and not contrary to the provisions of
this Bill of Rights and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be
carried out pursuant to a final judgment rendered by a competent
court.
(3) When deprivation of life constitutes the crime of genocide,
nothing in this article shall authorize the derogation in any way
from any obligation assumed under the provisions of the Convention
on the Prevention and Punishment of the Crime of Genocide.
(4) Anyone sentenced to death shall have the right to seek
pardon or commutation of the sentence. Amnesty, pardon or
commutation of the sentence of death may be granted in all cases.
(5) Sentence of death shall not be imposed for crimes committed
by persons below 18 years of age and shall not be carried out on
pregnant women.
(6) Nothing in this article shall be invoked to delay or to
prevent the abolition of capital punishment in Hong Kong.
[cf. ICCPR Art. 6]
Article 3
No torture or inhuman treatment and
no experimentation without consent
No one shall be subject to torture or to cruel, inhuman or
degrading treatment or punishment. In particular, no one shall be
subjected without his free consent to medical or scientific
experimentation.
[cf. ICCPR Art. 7]
Article 4
No slavery or servitude
(1) No one shall be held in slavery; slavery and the slave-trade
in all their forms shall be prohibited.
(2) No one shall be held in servitude.
(3) (a) No one shall be required to perform forced or
compulsory labour.
(b) For the purpose of this paragraph the term "forced or
compulsory labour" shall not include--
(i) any work or service normally required of a person
who is under detention in consequence of a lawful
order of a court, or of a person during
conditional release from such detention;
(ii) any service of a military character and, where
conscientious objection is recognized, any
national service required by law of
conscientious objectors;
(iii) any service exacted in cases of emergency or
calamity threatening the life or well-being of
the community;
(iv) any work or service which forms part of normal
civil obligations.
[cf. ICCPR Art. 8]
Article 5
Liberty and security of person
(1) Everyone has the right to liberty and security of person.
No one shall be subjected to arbitrary arrest or detention. No one
shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.
(2) Anyone who is arrested shall be informed, at the time of
arrest, of the reasons for his arrest and shall be promptly informed
of any charges against him.
(3) Anyone arrested or detained on a criminal charge shall be
brought promptly before a judge or other officer authorized by law
to exercise judicial power and shall be entitled to trial within a
reasonable time or to release. It shall not be the general rule
that persons awaiting trail shall be detailed in custody, but
release may be subject to guarantees to appear for trial, at any
other stage of the judicial proceedings, and, should occasion
arise, for execution of the judgment.
(4) Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a court, in
order that that court may decide without delay on the lawfulness of
his detention and order his release if the detention is not lawful.
(5) Anyone who has been the victim of unlawful arrest or
detention shall have an enforceable right to compensation.
[cf. ICCPR Art. 9]
Article 6
Rights of persons deprived of their liberty
(1) All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person.
(2) (a) Accused persons shall, save in exceptional circumstances,
be segregated from convicted persons and shall be subject
to separate treatment appropriate to their status as
unconvicted persons.
(b) Accused juvenile persons shall be separated from adults
and brought as speedily as possible for adjudication.
(3) The penitentiary system shall comprise treatment of prisoners
the essential aim of which shall be their reformation and social
rehabilitation. Juvenile offenders shall be segregated from adults
and be accorded treatment appropriate to their age and legal status.
[cf. ICCPR Art. 10]
Article 7
No imprisonment for breach of contract
No one shall be imprisoned merely on the ground of inability to fulfil
a contractual obligation.
[cf. ICCPR Art. 11]
Article 8
Liberty of movement
(1) Everyone lawfully within Hong Kong shall, within Hong Kong,
have the right to liberty of movement and freedom to choose his
residence.
(2) Everyone shall be free to leave Hong Kong.
(3) The above-mentioned rights shall not be subject to any
restrictions except those which are provided by law, are necessary
to protect national security, public order (ordre public), public
health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in this Bill of Rights.
(4) No one who has the right of abode in Hong Kong shall be
arbitrarily deprived of the right to enter Hong Kong.
[cf. ICCPR Art. 12]
Article 9
Restriction on expulsion from Hong Kong
A person who does not have the right of abode in Hong Kong but who
is lawfully in Hong Kong may be expelled therefrom only in pursuance
of a decision reached in accordance with law and shall, except where
compelling reasons of national security otherwise require, be allowed
to submit the reasons against his expulsion and to have his case
reviewed by, and be represented for the purpose before, the competent
authority or a person or persons especially designated by the
competent authority.
[cf. ICCPR Art. 13]
Article 10
Equality before courts and right
to fair and public hearing
All persons shall be equal before the courts and tribunals. In
the determination of any criminal charge against him, or of his rights
and obligations in a suit at law, everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal
established by law. The press and the public may be excluded from
all or part of a trial for reasons of morals, public order (ordre
public) or national security in a democratic society, or when the
interest of the private lives of the parties so requires, or to the
extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice, but any judgment rendered in a criminal case or in a suit
at law shall be made public except where the interest of juvenile
persons otherwise requires or the proceedings concern matrimonial
disputes or the guardianship of children.
[cf. ICCPR Art. 14]
Article 11
Rights of persons charged with or
convicted of criminal offence
(1) Everyone charged with a criminal offence shall have the right
to be presumed innocent until proved guilty according to law.
(2) In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guarantees, in
full equality--
(a) to be informed promptly and in detail in a language which
he understands of the nature and cause of the charge
against him;
(b) to have adequate time and facilities for the preparation
of his defence and to communicate with counsel of his
own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in
person or through legal assistance of his own choosing;
to be informed, if he does not have legal assistance, of
this right; and to have legal assistance assigned to him,
in any case where the interests of justice so require,
and without payment by him in any such case if he does
not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him
and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses
against him;
(f) to have the free assistance of an interpreter if he
cannot understand or speak the language used in court;
(g) not to be compelled to testify against himself or to
confess guilt.
(3) In the case of juvenile persons, the procedure shall be such
as will take account of their age and the desirability of promoting
their rehabilitation.
(4) Everyone convicted of a crime shall have the right to his
conviction and sentence being reviewed by a higher tribunal according
to law.
(5) When a person has by a final decision been convicted of a
criminal offence and when subsequently his conviction has been
reversed or he has been pardoned on the ground that a new or newly
discovered fact shows conclusively that there has been miscarriage
of justice, the person who has suffered punishment as a result of
such conviction shall be compensated according to law, unless it is
proved that the non-disclosure of the unknown fact in time is wholly
or partly attributable to him.
(6) No one shall be liable to be tried or punished again for
an offence for which he already been finally convicted or acquitted
in accordance with the law and penal procedure of Hong Kong.
[cf. ICCPR Art. 14.2 to 7]
Article 12
No retrospective criminal offences or penalties
(1) No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal offence,
under Hong Kong or international law, at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was applicable
at the time when the criminal offence was committed. If, subsequent to
the commission of the offence, provision is made by law for the
imposition of a lighter penalty, the offender shall benefit thereby.
(2) Nothing in this article shall prejudice the trial and
punishment of any person for any act or omission which, at the time
when it was committed, was criminal according to the general principles
of law recognized by the community of nations.
[cf. ICCPR Art. 15]
Article 13
Right to recognition as person before law
Everyone shall have the right to recognition everywhere as a
person before the law.
[cf. ICCPR Art. 16]
Article 14
Protection of privacy, family, home,
correspondence, honour and reputation
(1) No one shall be subjected to arbitrary or unlawful interference
with his privacy, home or correspondence, nor to unlawful attacks on his
honour and reputation.
(2) Everyone has the right to the protection of the law against
such interference or attacks.
[cf. ICCPR Art. 17]
Article 15
Freedom of thought, conscience and religion
(1) Everyone shall have the right to freedom of thought, conscience
and religion. This right shall include freedom to have or to adopt a
religion or belief of his choice, and freedom, either individually or
in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching.
(2) No one shall be subject to coercion which would impair his
freedom to have or to adopt a religion or belief of his choice.
(3) Freedom to manifest one's religion or beliefs may be subject
only to such limitations as are prescribed by law and are necessary
to protect public safety, order, health, or morals or the fundamental
rights and freedoms of others.
(4) The liberty of parents and, when applicable, legal guardians
to ensure the religious and moral education of their children in
conformity with their own convictions shall be respected.
[cf. ICCPR Art. 18]
Article 16
Freedom of opinion and expression
(1) Everyone shall have the right to hold opinions without
interference.
(2) Everyone shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media
of his choice.
(3) The exercise of the rights provided for in paragraph (2) of
this article carries with it special duties and responsibilities.
It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary--
(a) for respect of the rights or reputations of others;
(b) for the protection of national security or of public
order (ordre public), or of public health or morals.
[cf. ICCPR Art. 19]
Article 17
Right of peaceful assembly
The right of peaceful assembly shall be recognized. No restrictions
may be placed on the exercise of this right other than those imposed in
conformity with the law and which are necessary in a democratic society
in the interests of national security or public safety, public order
(ordre public), the protection of public health or morals or the
protection of the rights and freedoms of others.
[cf. ICCPR Art. 21]
Article 18
Freedom of association
(1) Everyone shall have the right to freedom of association with
others, including the right to form and join trade unions for the
protection of his interests.
(2) No restrictions may be placed on the exercise of this right
other than those which are prescribed by law and which are necessary in
such a manner as to prejudice, the guarantees provided for in the
International Labour Organization Convention of 1948 concerning Freedom
of Association and Protection of the Right to Organize as it applies
to Hong Kong.
[cf. ICCPR Art. 22]
Article 19
Rights in respect of marriage and family
(1) The family is the natural and fundamental group unit of society
and is entitled to protection by society and the State.
(2) The right of men and women of marriageable age to marry and to
found a family shall be recognized.
(3) No marriage shall be entered into without the free and full
consent of the intending spouses.
(4) Spouses shall have equal rights and responsibility as to
marriage, during marriage and at its dissolution. In the case of
dissolution, provision shall be made for the necessary protection of
any children.
[cf. ICCPR Art. 23]
Article 20
Rights of children
(1) Every child shall have, without any discrimination as to race,
colour, sex, language, religion, national or social origin, property or
birth, the right to such measures of protection as are required by his
status as a minor, on the part of his family, society and the State.
(2) Every child shall be registered immediately after birth and
shall have a name.
[cf. ICCPR Art. 24]
Article 21
Right to participate in public life
Every permanent resident shall have the right and the opportunity,
without any of the distinctions mentioned in article I(1) and without
unreasonable restrictions--
(a) to take part in the conduct of public affairs, directly or
through freely chosen representatives;
(b) to vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by
secret ballot, guaranteeing the free expression of the will
of the electors;
(c) to have access, on general terms of equality, to public
service in Hong Kong.
[cf. ICCPR Art. 25]
Article 22
Equality before and equal protection of law
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
[cf. ICCPR Art. 26]
Article 23
Rights of minorities
Persons belonging to ethnic, religious or linguistic minorities
shall not be denied the right, in community with the other members of
their group, to enjoy their own culture, to profess and practise their
own religion, or to use their own language.
[cf. ICCPR Art. 27]
PART III
EXCEPTIONS AND SAVINGS
9. Armed forces and persons detained in penal establishments
Members of and persons serving with the armed forces of the government
responsible for the foreign affairs of Hong Kong and persons lawfully
detained in penal establishments of whatever character are subject to such
restrictions as may from time to time be authorized by law for the
preservation of service and custodial discipline.
10. Juveniles under detention
Where at any time there is a lack of suitable prison facilities or
where the mixing of adults and juveniles is mutually beneficial, article
6(2)(b) and (3) does not require juveniles who are detained to be
accommodated separately from adults.
11. Immigration legislation
As regards persons not having the right to enter and remain in
Hong Kong, this Ordinance does not affect any immigration legislation
governing entry into, stay in and departure from Hong Kong, or the
application of any such legislation.
12. Persons not having the right of abode
Article 9 does not confer a right of review in respect of a decision
to deport a person not having the right of abode in Hong Kong or a right
to be represented for this purpose before the competent authority.
13. Executive and Legislative Councils
Article 21 does not require the establishment of an elected Executive
or Legislative Council in Hong Kong.
14. Temporary savings
(1) For a period of 1 year beginning, on the commencement date, this
Ordinance is subject to the Ordinances listed in the Schedule.
(2) This Ordinance does not affect--
(a) any act done (including any act done in the exercise of a
discretion); or
(b) any omission authorized or required, or occurring in the
exercise of a discretion,
before the first anniversary of the commencement date, under or by any
Ordinance listed in the Schedule.
(3) The Legislative Council may before the first anniversary of the
commencement date by resolution amend this section for all or any of the
following purposes--
(a) to provide that, for a period of 1 year beginning on the
first anniversary of the commencement date, this Ordinance is subject
to such of the Ordinances listed in the Schedule as are specified in
the amendment;
(b) to provide that this Ordinance does not affect--
(i) any act done (including any act done in the exercise
of a discretion); or
(ii) any omission authorized or required, or occurring
in the exercise of a discretion,
before the second anniversary of the commencement date,
under or by any Ordinance listed in the Schedule that is
specified in the amendment; and
(c) to repeal this subsection.
(4) In this section, a reference to an Ordinance includes a reference
to any subsidiary legislation made under that Ordinance.
(5) This section operates notwithstanding section 3.
SCHEDULE
PROVISIONS TO WHICH SECTION 14(1) AND (2) APPLIES
Immigration Ordinance (Cap. 115)
Societies Ordinance (Cap. 151)
Crimes Ordinance (Cap. 200)
Prevention of Bribery Ordinance (Cap. 201)
Independent Commission Against Corruption Ordinance (Cap. 204)
Police Force Ordinance (Cap. 232)
