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Hong Kong's Basic Law

For example, in the case of Gurung Kesh Bahadur v. Director of Immigration (2002), the Court of Final Appeal quashed what it viewed as the Immigration Department's violation of Bahadur's Article 31 right to travel. Notably, the right to travel is a right listed only in the Basic Law. None of the international covenants list such a right. But this right is specifically protected in section 3(5) of the Joint Declaration between the United Kingdom and the PRC.

On the other hand, in the case of Ng Ka Ling (1999), the Court of Final Appeal held that Hong Kong residents had a right not to be subjected to retrospective legislative, a right not specifically listed in the Basic Law, but read by the court to be incorporated by reference to the ICCPR. Significantly, however, the Final Court's reasoning in Ng Ka Ling is not accepted by all Chinese legal scholars. Some believe that Article 39 incorporates only those provisions of the international covenants that were expressly recognized in Hong Kong law before 1997.

Nonetheless, section 2 of Article 39 provides that the 'rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.' This Article acts in concert with Article 23, which provides that the PRC may draft restrictive legislation as necessary for national security, Article 158, which provides that '[t]he power of interpretation of this Law shall be vested in the NPCSC,' and Article 159, which provides that '[n]o amendment to this Law shall contravene the established basic policies of the PRC regarding Hong Kong.' Essentially, these four articles provide an opening for the PRC to limit the rights granted by Chapter III.

For example, in the case of Wong Yeung Ng. v. Secretary for Justice (1999), the court held that a right guaranteed by the Basic Law could be restricted by another law recognized in Chinese common law. Wong Yeung Ng was decided with reference to Article 19 of the I...

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Hong Kong's Basic Law. (1969, December 31). In Retrieved 18:32, July 20, 2017, from
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