Article 39 of the Hong Kong basic law revolves primarily on protection of human rights. According to Article 39 (2) of the Hong Kong Basic Law, the rights and freedoms enjoyed by the residents of Hong Kong shall not be restricted unless the law prescribes. There are two conditions established and required to be met for any rights to be restricted. As prescribed by law, the first condition states any restriction must be backed by Hong Kong Basic law. This is known as the legality test as it requires that any restrictions state clearly how an individual needs to restrict his actions in accordance to the law, for instance in the case of Shum Kwok Sher vs HKSAR (2002) 5 HKCFAR 381. In the case of Leung Kwok Hung versus HKSAR (2005) 8 HKCFAR 229, the court of appeal made a ruling that some of the restrictions made on freedom of assembly in the Public Order Ordinance (Cap 245) did not adhere to the legality tests. This instance shows clearly that the legality tests should be upheld by law and are bound to fail if they are not elaborated to the executive branch of government.
The second condition called the necessity test stated that restrictions should not contravene the provisions of the ICCPR and other human rights treaties in the Hong Kong Basic Law. This condition meant that if the restriction was on a right contained in the ICCPR, then it must have been necessary for one of the reasons listed in the ICCPR as permissible. Prescribed by law, the necessity test requires that the laws stated in the ICCPR should be applied to Hong Kong in accordance to the Hong Kong Bill of Rights Ordinance (Cap 383). This section states the requirements for restricting a particular right in both the ICCPR and the Hong Kong Bill of Rights Ordinance. For instance, in the case of HKSAR versus Ng Kung Siu (1999) 1 HKLRD 783 the necessity test was not adhered to as it was irrelevant to the reasons listed in Article 19 of the ICCPR. The court of appeal made a ruling to restrict the freedom of expression to vandalize the Chinese national flag.
The third test was the proportion test, which required that any restriction must have been proportionate to the aim it sought to achieve. In the case of HKSAR versus NG Kung Siu (1999) 2 HKCFAR 442, the court of Appeal made a consideration that the limited restriction on freedom of expression only posed a ban on the vandalism of the Chinese national flag as it only lay restrictions on one form of freedom of expression.
The role of the ICCPR in the Hong Kong basic Law is that it contains many rights that already exist in the Hong Kong Basic Law, but gives more elaboration on the rights with clearly articulated details on when these rights can be restricted (Danny, 10). Article 39 (2) contained in the Hong Kong basic law is important due to the fact that it provides means in the ICCPR that give direction on when it is necessary to restrict the human rights. Being a former British colony, it has the influences of the English common law and legislation, while remaining under the control and governorship of China, which operates a different legal system. Hong Kong has adopted the British basic law that it uses in the legislative region.
Parallel rights listed in the ICCPR similar to the Hong Kong Basic Law include:
- Freedom of equality (article 3)
- Freedom of speech (article 19)
- Freedom of assembly (article 21)
Example of a case illustrating conflict between the ICCPR and the Hong Kong Basic Law is the case Yeung May Wan VS. HKSAR revolving aroud the freedom of assembly. The plaintiff failed to notify police they were having a gathering, reasoning that members of the meeting were less than 30 as prescribed by the ICCPR. The offenders were charged with obstructing public space under the Hong Kong basic law.
Another major importance of Article 39 contained in the Hong Kong basic law is that it stipulates the major policies of the PRC towards the Hong Kong Special Administrative Region. Having acquired its independence from the British rule, Hong Kong had to maintain proper functioning of its economy and good relations with Britain. Therefore, adoption of a two-system method in China with Hong Kong operating its own legal system based on the guidance of the common law, which is different from the mainland’s system became necessary. This approach struck a delicate balance between the two competing objectives in China.
In addition to this, article 39 serves an important role of the Hong Kong basic law in that it defines and describes the rights and freedom of expression to the citizens. Article 39 protects the freedom of expression by clearly stating that the different views and modes of articulation the people use will not be criminalized unless they provoke or incite others to attain various goals through violence or war or even unlawful means. This helps the people maintain peace.
The importance of article 39(2) to the Hong Kong basic law is that it offers restrictions that offer interpretation of the basic law rights depending on the nature of the rights at issue. The article 39 states “the provisions of the International Covenant on Political and Civil Rights (ICCPR), the International Covenant on Social, Economic, and Cultural Rights, and international labor Conventions as applied to Hong Kong shall stay in force and be implemented through the Laws of the Hong Kong Special Administrative Region (HKSAR)”.Due to this reason they should be considered as a constitutional safeguard. Nevertheless, a good autonomy does not imply that it is very self-reliant from the mainland. It is still controlled by China and is only recognized by the mainland as a subordinate administrative division, hence the operation of more than one system in China. The Sino Joint Declaration has allowed China to enact the Basic Law of Hong Kong that ensures an independent and special policy for governing Hong Kong’s Special Administrative Region.
The Hong Kong basic law describes the law made by the National People’s Congress to protect and differentiate the laws in Hong Kong from those followed in China. Article 39 contains provisions that protect the rights and freedoms of the residents by limiting any amendment that would jeopardize the policies established by the People’s Republic of China concerning China. Unlike any other laws in Hong Kong Special administrative region, the adoption and drafting of the basic law was unique and different . The basic law draft was therefore a multidimensional legislative document that consisted of internal, constitutional, and domestic aspects of law. The formulation of basic law was enacted as it pointed out the important aspect of the protection of human rights as provided in Article 39.
The law was written in two official languages, that is Chinese and English, but the Chinese version supersedes the English version in the course of interpretation difficulties. The basic law in its sense holds a combination of two perspectives. The two perspectives have different influences on the Hong Kong’s basic law and natural Human rights. The reason why article 39 is important to the Hong Kong Basic law is that, it was enacted to help the people of China familiarize themselves with the rights and freedoms they would enjoy after gaining independence from the British rule. It defines and clearly articulates the restrictions that govern the citizens. The Basic Law outlines the rules and regulations on human rights but article 39 explains to what extent the laws can be enacted. Law enforcers cannot violate the human rights unless they have been broken.
Article 39 (2) in the Hong Kong basic law serves a very important role in that it enlightens the people about their rights and freedom as well as the restrictions they face. Therefore, gross violation of human rights and freedoms in Hong Kong were bound to happen if it adopted fully the Chinese administrative system. Article 39 in the Hong Kong’s bill of Rights and Ordinances is an important element enacted in the basic law to protect the fundamental human rights and freedoms of the Hong Kong people.
Article 39(1) on the Human rights and freedoms therefore provides a basic guideline that governs the region to maintain the balance in the one country two systems adopted from China and Hong Kong. It recognizes the treaties signed between Britain and China to operate Hong Kong as a special administrative region for the system to successfully work out the model of one country-two systems. The Hong Kong Special administrative region (HKSAR) is in a unique position. It falls under the control of a socialist republic China that does not have strict adherence of human rights, while at the same time being under the influence of the British common law
Human rights protection in Hong Kong stems from the basic laws. However, article 39(1) in the Hong Kong Basic Law protects the human rights by ensuring that it involves the ICCPR that implements the protection of the rights. Apart from the traditional rule of law, international standards on human rights provide a system of protecting the fundamental freedoms and rights of the citizens of Hong Kong. All these laws are upheld by the courts in the Hong Kong special administrative region. The rule of law serves as the constitutional principle or the official expectations of rights and freedoms for the people. It remains important for the legal systems to adhere to the rule of law in order to protect the fundamental rights and freedoms of the people. Notably, the ICCPR offers citizens additional rights that are not stated in the Hong Kong Basic Law. These are:
- The right to strike and form trade unions (article 8)
- Right to social welfare (article 6)
- Right to enjoy benefits arising from scientific discoveries in the form of material and moral interest (ICESCR article 15)
The resultant effect is that it provides adequate and fair enforceable rights and freedoms to the HKSAR. The International covenant on Political and civil Rights makes it compulsory for the members of the treaty to observe and implement the international human rights standards. Hong Kong’s bill of ordinances and article 39 recognizes this by enforcing the treaty in the Hong Kong special administrative region.
Therefore, it is important to note that Article 39(1) upholds the major rights and freedoms of the Hong Kong Basic Law and safeguards them against any form of violation. It provides the grounds on which the ICCPR and ICESR can apply to justify cases where human rights and freedoms have been restricted. Article 39 states the reasons which can provide the basis for various freedoms to be restricted. It is important for the protection of human rights under the Hong Kong basic law in that it shows the extent to which the law can exercise their policy.
The ICCPR receives special constitutional privileges in Hong Kong in that it is contained in the Hong Kong Bill of rights. Therefore, any human rights restrictions that affect the ICCPR infringe the Bill of rights and at the same time contravenes article 39 that derives its power for the basic law. If similar rights and freedoms overlap in both ICCPR and the Basic law, the same restrictions will apply. The legitimate purpose for restricting rights given under the ICCPR is when the rights fail within the narrow conditions defined in the three tests given by Article 19 (3) of the ICCPR. Prescribed by the law, the right to freedom of expression must apply to the law or regulation recognized by those that have the mandate to uphold the law. They must render respect for the rights and reputations of others as well as offer national security protection according to Article 19 (3) of the ICCPR. Moreover, the basic law will supersede any restrictions placed by the ICCPR on any human rights enjoyed under the basic law. This is because the joint declaration does not specifically mention that ICCPR reservations would be of general application and furthermore, the rights originate from two different sources created by different sovereignties.
Where Basic laws are treated as autonomous, restrictions may depend on interpretation and the nature of the rights in question. However, this approach does not provide how basic law may be restricted. Therefore, Article 39 acts as a constitutional safeguard rather than a limitation clause. One can only interfere with the rights and freedoms up to a definite point beyond which no reason is justifiable for its interference. Article 39 (2) in the basic constitution does not bar human rights, but rather protects them against any unjustifiable interference from any laws.
In conclusion, Article 39(2) contained in the Hong Kong Basic law outlines the guidelines that need to be followed for human rights to be adhered to. It also offers the basis on when the rights given under the ICCPR and the Hong Kong Basic Law can be restricted if they pose a danger to national security and the freedom of citizens. The article also brings about the knowledge on measures that need to be adopted to ensure human rights are observed, and what actions under the law can be taken for those who infringe on human rights, which is against requirements of the law. Article 39(2) gives guidelines on the steps that should be followed in the restriction of various rights and freedoms of human rights by incorporating the ICCPR to clearly define the grounds on which rights may be restricted.
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