CONFIDENTIAL
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CONFIDENTIAL
FM FCO
TO IMMEDIATE HONG KONG
TELNO 473
OF 01173OZ MARCH 90
INFO PRIORITY PEKING, UKREP JLG HONG KONG
BILL OF RIGHTS
017216 MDHOAN 4237
Mr Paul, HE)
The humble awal the
азитен слих й
chathe
Chinese way
to the confulles
exped alou ervezence емлезени
thee sues.
1. OUR LEGAL ADVISERS HAVE BEEN GIVING FURTHER THOUGHT TO THE QUESTION OF ENTRENCHMENT BEFORE THE BILL IS PRESENTED TO EXCO IN 6 MARCH.
2. THEY SUGGEST RETAINING CLAUSE 3(I) OF THE PRELIMINARY TO THE ACT BUT DELETING CLAUSE 4 ALTOGETHER.
3 =
THE LETTERS PATENT WOULD BE AMENDED BY ADDING A NEW ARTICLE IDENTICAL TO (OR BASED VERY CLOSELY ON) ARTICLE 39 OF THE DRAFT BASIC LAW. THE BILL OF RIGHTS WOULD THEN CONTAIN NO SAFEGUARD AGAINST INCONSISTENT FUTURE LEGISLATION, AND SO WOULD FACE NO LEGAL PITFALLS. THE AMENDMENT TO THE LETTERS PATENT WOULD PROVIDE FULL ENTRENCHMENT FOR THE BILL OF RIGHTS. THIS WILL, OF COURSE, FALL AWAY IN 1997 BUT BE REPLACED BY ARTICLE 39 ITSELF.
4. IT CANNOT BE GUARANTEED THAT SAR COURTS WOULD NECESSARILY APPLY THE PRINCIPLES OF (NEXT WORD UNDERLINED) ULTRA VIRES TO ARTICLE 39, BUT THIS WOULD BE REASONABLY LIKELY, ESPECIALLY IF A BODY OF CASE LAW RELATING TO THE 'ARTICLE 39' IN THE LETTERS PATENT HAD BUILT UP BEFORE 1997.
5. THIS METHOD SEEMS TO AVOID BOTH LEGAL OBJECTIONS AND POLITICAL DIFFICULTIES. WHILE PROVIDING FULL CONSTITUTIONAL GUARANTEES IN HONG KONG AT LEAST UP TO 1997, IT COULD ALSO BE PRESENTED AS A CONVERGENCE MEASURE, PASSED TO IMPLEMENT PART OF THE BASIC LAW, TO WHICH THE CHINESE COULD HARDLY OBJECT.
GRATEFUL FOR YOUR VIEWS.
fr
2/3
6.
HURD
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