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CONADENTIAL
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would be placed on Article 39 of the Basic Law for entrenchment. This would avoid any possible objections by the PCR that special conditions had been introduced limiting the powers of the Hong Kong legislature, both before and after 1997, for the protection of human rights.
14.
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It must be expected that to introduce a Bill of Rights with no entrenchment provision will invite extensive critical comment, given the common understanding of Bills of Rights an understanding reinforced by governmental statements about the intended Hong Kong Bill to date. Further, the assurances to the public of access to the courts to enforce personal freedoms will be understood to mean that in Hong Kong, as in other common law countries with bills of rights, individuals will be able to challenge in court any future ordinance or its administration which appears to conflict with
This
or repeal the Bill of Rights and the courts will be able to decide whether there is such a conflict. is a major element in reassuring the public of protection of their rights.
15.
It will be extremely difficult to present these suggested methods of "entrenchment" as having that effect. The provisions in the Royal Instructions
not the courts, at best leave the matter to the Governor,
to determine whether any new ordinance would conflict with the ICCPR. In effect, this is the status quo and there will be critics who will say that the Royal Instructions have not precluded the past adoption of laws which have turned out to be inconsistent with the ICCPR.
Critics
will not fail to observe that it will be the Governor's opinion, not that of the courts, which will determine whether the government's legislation abridges ICCPR rights. It will not be open to anyone to challenge the Governor's assent to a particular ordinance on the