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067043 MDLIAN 4405
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CONFIDENTIAL
FM HONG KONG
TO ROUTINE FCO
HKD241/1
RECEIVE
REGISTRY
20 rtB 1990
DESK OFFICŁA
TELNO 369
INDEX
OF 31050OZ JANUARY 90
REGIST
OP COPY
Action Taken
INFO ROUTINE PEKING, UKREP JLG HONG KONG
33
YOUR TELNO 262: BILL OF RIGHTS
1. THE OUTCOME OF EXCO DISCUSSION ON 23 JANUARY WAS REPORTED IN MY TELNO 331. THE FULL RECORD OF THE DISCUSSION IS AS FOLLOWS :·
A: COMMENTARY
(A) THERE WAS A WIDESPREAD PUBLIC MISCONCEPTION THAT GOVERNMENT HAD CONSIDERED AND REJECTED THE OPTION OF ENTRENCHMENT FOR THE BILL OF RIGHTS: IN FACT THE OPTION OF ABSOLUTE ENTRENCHMENT HAD NEVER REALLY EXISTED. WHILST HURDLES COULD BE PLACED IN THE WAY OF FUTURE LEGISLATURES AMENDING OR REPEALING THE BILL WITH UNDUE HASTE, FOR EXAMPLE BY REQUIRING ATTENUATED AMENDMENT OR EXCEPTIONAL MAJORITIES, THERE COULD BE NO ABSOLUTE ENTRENCHMENT WITHOUT ENSHRINEMENT IN A HIGHER CONSTITUTIONAL DOCUMENT: IN HONG KONG'S CASE, FOR POLITICAL REASONS, THIS WAS UNACCEPTABLE. THE AIM WAS THEREFORE TO ENACT A BILL OF RIGHTS THAT WOULD ENDURE BEYOND 1997.
(B) A DEGREE OF ENTRENCHMENT, IN A POLITICAL RATHER THAN LEGAL SENSE, WAS PROVIDED BY BASING PART II OF THE BILL ON THE ICCPR, ITSELF ENTRENCHED THROUGH ARTICLE 39 OF THE BASIC LAW. ALTHOUGH - THIS WOULD NOT PREVENT AMENDMENT OR REPEAL, IT WOULD ENSURE THAT THE SARG COULD NOT ENACT LEGISLATION THAT CONFLICTED WITH PART II OF THE BILL WITHOUT CONTRAVENING THE JOINT DECLARATION.
(C) THE REQUIREMENT FOR THE ATTORNEY GENERAL TO CERTIFY THAT NEW LEGISLATION DID NOT IN HIS OPINION CONFLICT WITH THE PROVISIONS OF THE BILL OF RIGHTS, THE INTERPRETATION CLAUSE IN THE BILL AND THE PRACTICE OF MAKING FUTURE LEGISLATION SUBJECT TO THE BILL, WHILST NOT MAKING IT SUPREME, WOULD MAKE IT POLITICALLY DIFFICULT TO INTRODUCE LEGISLATION THAT CONFLICTED WITH THE BILL AND WOULD CONFER AN AURA OF SPECIAL STATUS ON IT.
IN
(D) THE RETENTION OF THE PHRASE 'THE LIFE OF THE NATION CLAUSE 5(1), WHILST ENSURING THAT THERE WOULD BE NO CONFLICT WITH THE BASIC LAW, HAD THE ADDED ADVANTAGE OF ENSURING THAT BASIC HUMAN RIGHTS COULD NOT BE SUSPENDED IN THE EVENT OF LOCALISED TURMOIL,
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