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GOVT HOUSE
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CUNHUENTIAL
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for entrenchment, with varying degrees of protection
against easy amendment.. For example, the election requirement could be dropped from the present draft, so that there would be only a one year gap between first and third readings. That interval could also be adjusted, perhaps reduced to 6 months. Another possibility would be to use the approach employed in the Canadian Bill of Rights, 1960, which required that every federal law (past or future) be construed and applied so as not to abrogate the rights therein, unless such other law "expressly declared that it shall operate notwithstanding the [Bill of Rights]". This would be. significantly better than no entrenchment. The general ineffectiveness of the 1960 Canadian Bill of Rights is well-known throughout the common law world and was an important factor in the adoption there of a constitutional bill of rights, properly entrenched, in 1982. Part of the weakness
of the 1960 Bill flowed from this weaker form of entrenchment. But the wording of a such a clause could be improved on, and a better result could be achieved in Hong Kong using the same basic principle of a "notwithstanding" clause. We would be exposed to the criticism, however, that this represents no significant check on a legislature and government determined to abridge rights : all they need to do is to employ the right words and the abridging law can be adopted in three normal readings which, by suspension of standing orders, could even be effected
in less than a day.
Entrenching Devices outside the Bill
13.
We discussed two possibilities at our meeting of 6 December, one for before 1997 and one for after 1997. The view was that reliance might be placed before 1997 on the existing Royal Instructions to the Governor that he should not assent to bills appearing inconsistent with treaty obligations, or on some modification of those instructions. Thus, he would refuse assent to future bills abridging ICCPR rights. After 1997 reliance