Law Officer (Special Duties)
SD/POL/13C
5-8413273
16 July 1985
MEMO
داماش
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To Secretary (General Duties,
Your Ref.
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Fundamental Rights and Freedoms
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I agreed to prepare a discussion paper on
fundamental rights and freedoms. The immediate purpose is
to consider whether we would like the Basic Law to contain any provisions on this subject, and if so what. This is linked to the question whether Hong Kong should enact its own "Bill of Rights" before 1997, and whether that or some other course would be desirable.
2.
The Hong Kong SAR already has an entrenched "Bill of Rights" in Annex I(XIII) (and Annex I(VI), 3rd sentence) to the Joint Declaration. By virtue of para 3(12) of that Declaration these provisions must be stipulated in the Basic Law.
3.
I suggest that our first aim should be to ensure that the Basic Law does so stipulate. Whatever method we choose, we should try to ensure that nothing gets into the Basic Law which qualifies or misinterprets the Joint Declaration or the International Covenants as they are applied to Hong Kong. In this connection there is advantage in not departing unnecessarily in a national law from language which is supported by international interpretation and application (as is the language of the covenants). you know, the covenants are policed by the UN Human Rights Committee.
4.
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One method of achieving our first aim would be to insert a provision in the Basic Law to the effect that the provisions of the Joint Declaration and its Annexes, to the extent that they are capable of having the force of law in the Hong Kong SAR, shall have such force, and shall prevail over any other legislative provision. Similar provisions, referring to international agreements generally, appear in Articles 65 and 66 of the Netherland constitution. Other examples are to be found in the constitutions of France, Greece and Spain. The Carriage by Air Act 1961 uses a similar technique, and so does the Diplomatic Privileges Act 1964.
5.
Another method would be to insert into the Basic Law provisions on fundamental rights and freedoms such as customarily appear in the constitutions of newly independent states. In this respect, it is interesting to make a comparison between on the one hand the Joint Declaration and the covenants, and on the other hand the independence.
Die
LES BRANCH
17/7/85
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