..
18.
The latter criticism could also be made in
respect of reliance on Article 39 of the Basic Law.
The wording of that Article is very ambiguous. At best (and this is not certain) it can be seen to preclude infringement of Covenant rights, but it would not prevent
Reliance the repeal of the Bill of Rights itself.
*
on the Basic Law for entrenchment also opens up other undesirable issues inherent in Basic Law Article 157, such as who is entitled to interpret the Basic Law in a given case, the HKSAR courts or the Standing Committee of the NPC? Or, should the HKSAR court seek the opinion
If of that Committee before making a determination? on the other hand there is a domestic form of entrenchment of a domestic law, the HKSAR courts would only need to look to the Bill of Rights. If they found a law to be in conflict they could strike down that law and no issue would arise as to conflict with the Basic Law as the impugned provision would never have been "a law
of Hong Kong".
Conclusion
19.
From the legal standpoint, for the Bill of Rights to be, and to be seen, as providing effective protection for the rights of Hong Kong people, it is very important that there be an entrenchment provision included in it to assure to the courts the power of deciding that Hong Kong laws, or official acts committed pursuant to those laws, to be invalid as infringing
the Bill of Rights.
c.c. CS
SCA S(GD) PA
LO(IL)
J.%. Maths
(J.F. Mathews) Attorney General 12 December 1989
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