123
CODE 18-77
7.B.25/6
Mr Burrows, Legal Counsellor
(K194)
Mr. Edgar
HONG KONG: VIETNAMESE REFUGEES
(
Reference
HKK 243/1
งอ
(५८
1
29
Ar
تلاش
1. Please refer to your minute of 25 June. I believe the problem to which you drew attention in paragraphs 3 and 4 of your minute of 23 June (folio 123) would not be solved by the ability of detainees to test the lawfulness of their detention by prerogative writ. According to Hong Kong telegram No 676 of 24 June, the Court would hear arguments concerning the lawfulness of the detention upon a writ of habeas corpus, if issued. Hong Kong
go on to say (in my view quite correctly) that the Court would be likely to refuse the application because the detention would so clearly have been expressly authorised by Statute.
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A 2. Article 9 of the International Covenant is worded very similarly to Article 5 of the European Convention on Human Rights and paragraphs (4) of these two Articles are almost identical. We have had several recent applications against us before both the European Commission of Human Rights and the European Court of Human Rights brought by persons who alleged that they were unable to test the lawfulness of their detention in accordance with paragraph 4 of Article 5 and in which our defence of relying on the ability of the detainees to proceed for a writ of habeas corpus failed. The European Court of Human Rights in its recent judgment (November 1981) in the case of X v UK, after carefully reviewing the right of a mental patient, held in Broadmoor Hospital under the provisions of the Mental Health Act 1959, to apply for a writ of habeas corpus, decided that it was not a sufficient remedy to meet the conditions contained in Article 5(4) of the Convention. Three passages from the Court's judgment are perhaps worth quoting:
"In habeas corpus proceedings, in examining an administrative
decision to detain, the Court's task is to enquire whether the detention is in compliance with the requirements stated in the relevant legislation and applicable principles of the common law the Court will not be able to review the grounds or merits of a decision taken by an administrative authority to the extent that under the legislation in question these are exclusively a matter for determination by that authority. When the terms of a Statute afford the executive a discretion, whether wide or narrow, the review exercisable by the Courts in habeas corpus proceedings will bear solely upon the conformity of the exercise of that discretion with the empowering Statute."
"Although X had access to a Court which ruled that his
detention was "lawful" in terms of English law, this cannot of itself be decisive as to whether there was a sufficient review of "lawfulness" for the purposes of Article 5(4)".
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