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Mr Powell, HKD
Tel serf
3112
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HONG KONG FUNDAMENTAL RIGHTS AND FREEDOMS that Mu Powell's ch gest
1.
be! be sent
chafred.
:
Paragraph 3(5) of the Joint Declaration states that rights and freedoms will be ensured by law in the SAR, and a non-exhaustive list was given. Paragraph 2(12) states that this policy and its elaboration in Annex I will be stipulated in the Basic Law. Annex I(XIII) states that the SAR Government shall "maintain the rights and freedoms as provided for by the laws previously in force in Hong Kong", and a similar non-exhaustive list is given. Annex I(XIII) further states that the provisions of the two International Covenants as applied to Hong Kong shall remain in force.
2.
I do not read these provisions as requiring that the Basic Law provide that the provisions of the International Covenants should have the force of domestic law in Hong Kong. I think the reference to the Covenants in Annex I(XIII) means rather that the provisions of the Covenants, as they apply as international treaties to Hong Kong, shall be maintained as international treaties. This reading is, I believe, supported by paragraphs 43-47 of the Explanatory Notes in Cmnd 9352.
3.
Nor do I believe it would necessarily be a good thing if the Basic Law were to provide that the Covenants should have the force of domestic law in Hong Kong.. A number of provisions in the Covenants are scarcely appropriate for direct inclusion in Hong Kong's legal system. For example, a number of them refer to procedures or exceptions laid down by law.
4.
Now
redrafted
6.4/26/11
It would seem to me that the intention behind the Joint Declaration is that the Basic Law should state that the rights and freedoms already included in Hong Kong law in 1997 should be maintained. In other words, no laws should be passed after 1997 that weaken these rights and freedoms. We presumably believe that the law of Hong Kong is already in conformity with the provisions of the International Covenants as they apply to Hong Kong. And the effect of maintaining those Covenants in force as regards Hong Kong will be that there is the additional guarantee of an international obligation which precludes changes to the law that would be incompatible with the Covenants. If Hong Kong law as it exists at present is thought to be defective as regards any of the rights and freedoms referred to in the Joint Declaration including those set out in the International Covenants, consideration should be given to amending Hong Kong law in particular respects so that this is no longer the case. I note that both you and Hong Kong consider that the introduction now of a bill of rights would not be desirable. A bill of rights would certainly not make the administration of Hong Kong any easier.
H&M 040/43
RECEIVED IN RECINTRY
M Clarrar
CODE 18-77 AWO Ltd. 7/84
7 October i.
- 4 DEC 1985
STRY
Taken
M C Wood
Legal Advisers