21
Acting Attorney General
CONFIDENTIA
Entrenchment of the Bill of Rights
The Need for Domestic Entrenchment
I have been asked to consider whether entrenchment measures to give greater protection to the Bill of Rights than was contemplated in the drafting instructions of October 25 are desirable and, if so, what they should
be.
It is clear that such entrenchment should be equally
effective after, as well as before, 1997. This precludes
resort to U.K. legislation or orders in council. It is also recognised that, while the Basic Law entrenches the rights specifically set out in it (in e.g. articles 25 to 37 and article 86) it is very debatable whether
the Basic Law would entrench Hong Kong legislation implementing
the ICCPR. Such legislation will contain rights more
extensive than those in the Basic Law. The uncertainty can be seen by a close scrutiny of article 39 which, after reproducing the JD provisions as to the ICCPR staying in force, goes on to say that it -
"... shall be implemented through the laws
of the [HKSAR).
The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless
prescribed by law. Such restrictions shall
not contravene the provisions of the preceding paragraph of this article."
Perhaps this means that the HKSAR can only pass laws
to implement rights, but not to amend those laws restrictively. But it could well leave open the power of the HKSAR to "disimplement" parts of the ICCPR. When article
CONFIDENTIA!
.../2