More rights, not less
ONCE again, despite its much vaunted respect for legislators' right to decide, the Government has chosen to turn a deaf ear to the view of the Legislative Council. Ironically, it was that ardent proponent of the empowerment of Legco, Secretary for Constitutional Affairs Michael Sze Cho-cheung who chose to reject Legco's call for the establishment of an independent human rights commission. Even more ironic, the Governor, who has brought China's wrath upon himself for proposing an election committee arrangement for 1995 which, by his own interpretation of the Basic Law must be changed in 1999, is now arguing that a human rights commission would serve little purpose ''if it wasn't going to last very long into the future''.
The same argument could have been used against enacting the Bill of Rights. Luckily for Hongkong, Mr Patten's predecessor and his Foreign Office masters, so often accused of appeasement, chose not to take such a defeatist attitude. When they enacted the Bill, they gave Hongkong a stronger human rights guarantee than is enjoyed by the citizens of the United Kingdom. The Governor is, of course, correct to argue that China would instil greater confidence in Hongkong's future freedoms if it signed the two international human rights covenants. In the interim, however, Britain should be in the business of further entrenching human rights in the territory's legal structures, not claiming that institutions most suited to the task are not needed.
Constitutionally, the Government is at liberty to ignore even the most unanimous Legco motion. But the logic of the case for an independent human rights commission cannot be so easily dismissed.
The Government has amply demonstrated the need for an independent body by its own failure to systematically repeal or re-examine all legislation that could conflict with the Bill of Rights, relying instead on the courts.
That is an all too haphazard method of ensuring consistency in the law. It allows the Government to continue using draconian or abusive laws for as long as it is not challenged in court. It also leaves the same doubtful legislation on the books ready for use after 1997.
Effective protection through the courts requires effective access to justice for all. Yet it is in the nature of Hongkong's legal aid system that only the very poor and the very rich can afford to fight individual human rights actions in the courts. The result will be a body of human rights laws built up out of loopholes and special cases and skewed in favour of the wealthy or those backed by well-funded organisations.
A report by the Judiciary Working Group of Britain's Institute for Public Policy Research concluded that for a Bill of Rights to work, an independent rights commission was needed to investigate practices that might appear contrary to its provisions, bring test cases and ensure they are well argued. It would also assist individuals in fighting alleged infringements of their rights whatever their financial position. This would not, as Mr Sze has claimed, be a duplication of the work of the courts but a stimulus and a complement to it.
The Government now faces the possibility of a private member's bill from the United Democrats' camp to provide for the setting up of a human rights commission in spite of official opposition. Judging by the response in Wednesday's motion debate, such a bill would have a good chance of making it on to the statute books. It would be a salutory lesson for the Government to learn that it cannot always ignore the legislature's wishes.