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Following is a question by the Hon Audrey Eu and a reply by the Secretary for Justice, Ms Elsie Leung, in the Legislative Council today (June 20):

Question :

After considering the initial report submitted by the People's Republic of China on the implementation of the International Covenant on Economic, Social and Cultural Rights in the Hong Kong Special Administrative Region ("SAR"), the United Nations Committee on Economic, Social and Cultural Rights adopted its Concluding Observations on 11 May this year. The Committee expressed concern that the provisions of the Covenant had not yet been incorporated into the laws of the Hong Kong SAR, and stated that it was a mistaken understanding of the legal obligations arising from the Covenant on the part of the States parties to hold the opinion that the Covenant is "promotional" or "aspirational" in nature. In this connection, will the Government inform this Council whether:

(a) it has implemented the Covenant through the laws of the Hong Kong SAR, in accordance with Article 39 of the Basic Law; if not, whether it has assessed if the Hong Kong SAR has contravened this Article, and whether it will consider incorporating the provisions of the Covenant into the laws of the Hong Kong SAR; if it will consider, of the details; if not, the reasons for that; and

(b) it will follow the advice of the Committee to not argue in court proceedings that the Covenant is only "promotional" or "aspirational" in nature?

Reply :

Madam President,

With regard to the first part of this question, the relevant Concluding Observation was that -

'The Covenant's status in HKSAR's domestic legal order continues to be different from that of the International Covenant on Civil and Political Rights, the provisions of which have been incorporated into domestic legislation.'

The Administration understands that the difference referred to is the different manner in which the two Covenants have been implemented in domestic law. The ICCPR has been implemented largely through one particular Ordinance, namely the Hong Kong Bill of Rights Ordinance. There is no equivalent single Ordinance that implements the International Covenant on Economic, Social and Cultural Rights.

However, provisions of the latter Covenant are incorporated into our domestic law through many Articles in the Basic Law, and through provisions in over 50 Ordinances.

Article 39 states that the provisions of the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. That is the case. The Administration does not therefore consider that there has been a breach of Article 39 of the Basic Law in this respect.

However, the Covenant requires the Administration to take steps with a view to achieving progressively the full realisation of the rights recognised in it by all appropriate means. This process is an ongoing one, and the possibility of enacting further legislative provisions for this purpose is always kept in mind. For example, the Administration is currently considering the desirability of proposing an increase in the age of criminal responsibility, and is reviewing the issue of racial discrimination.

With regard to the second part of the question, the Administration notes that the Committee on Economic, Social and Cultural Rights has urged the Hong Kong SAR not to argue in court proceedings that the Covenant is only 'promotional' or 'aspirational' in nature. The question of the precise nature of the Covenant may, in future, arise in domestic legal proceedings in many different contexts. In each case in which it does arise, it must be our independent judiciary that decides that question. The courts will be best assisted in that task if all legitimate arguments are put to them by counsel appearing for the parties.

The Administration, counsel acting for it, the same as other counsel, have a privilege to defend the Administration's rights by the statement of every fact and the use of every argument that is permitted by the principles and practice of the law. That privilege is recognised in the Code of Conduct of the Bar of the Hong Kong Special Administrative Region.

With the greatest respect to the Committee on Economic, Social and Cultural Rights, there are distinguished legal experts who hold differing views as to the nature of the ICESCR. Where the nature of the Covenant arises in legal proceedings, the courts may well be aided in their task by being informed of those differing views. It would not therefore be appropriate for the Administration to undertake to withhold such views from the courts, or to undertake not to support those views in any circumstances.

End/Wednesday, June 20, 2001

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