CONFIDENTIAL
131
165361 MDHOAN 9649
CONFIDENTIAL
FM FCO
TO IMMEDIATE HONG KONG
TELNO 1043
OF 30110OZ MAY 90
HKD241+
31 MAY 1990
un Taxen
lo Rusils
INFO PRIORITY PEKING, UKREP JLG HONG KONG
YOUR TELNO 1583 AND UKREP JLG TELNO 119 : HONG KONG BILL OF RIGHTS
1. THE FOLLOWING ARE OUR COMMENTS ON THE POINTS RAISED BY OMELCO'S AD HOC GROUP TOGETHER WITH SOME MORE POINTS OF SUBSTANCE.
NATIONAL SECURITY (PARAS 2-6 OF TUR)
2. IN OUR VIEW. IT WOULD NOT BE CONSISTENT WITH THE COVENANT TO SUBSTITUTE THE SECURITY OF HONG KONG FOR NATIONAL SECURITY. FURTHERMORE, SUCH A SUBSTITUTION MIGHT LAY THE HONG KONG AUTHORITIES OPEN TO ALLEGATIONS OF VIOLATION OF THE BILL OF RIGHTS, IF THEY TOOK ACTION, FOR EXAMPLE, UNDER A LAW ENACTED TO GIVE EFFECT TO ARTICLE 23 OF THE BASIC LAW. WE CONSIDER IT PRUDENT TO RETAIN THE DEFINITION OF NATIONAL SECURITY IN CLAUSE 2(1) OF THE BILL AS PRESENTLY DRAFTED FOR THE PERIOD BEFORE 1997 INCASE THE COURTS WOULD REFUSE TO RECOGNISE A DEFENCE BASED ON NATIONAL SECURITY UNLESS THERE WAS SOME CONNECTION WITH THE (DISTANT) UNITED KINGDOM. IT IS NOT STRICTLY NECESSARY AFTER 1997 (WHEN HONG KONG AND THE SOVEREIGN STATE ARE SO MUCH CLOSER), HOUGH YOU MAY CONSIDER IT DESIRABLE TO RETAIN IT FOR THE GUIDANCE OF THE COURTS. AS FAR AS THE CASE CITED IN YOUR PARA 2 IS CONCERNED SURELY THIS WOULD RAISE A QUESTION OF PUBLIC ORDER NOT NATIONAL SECURITY.
PUBLIC EMERGENCIES (PARAS 7-12 OF TUR)
3 WE AGREE THAT WE SHOULD DROP CLAUSE 5 AS PRESENTLY DRAFTED PARTLY FOR THE REASONS SET OUT IN YOUR PARA 7, PARTLY BECAUSE THE DEFINITION IN CLAUSE 5(3) WILL NOT SUIT THE CIRCUMSTANCES AFTER 1997 (LIFE OF THE NATION CAN THEN ONLY REFER TO THE WHOLE COUNTRY) AND PARTLY BECAUSE WE FEAR THAT THE REFERENCE TO QUOTE GOVERNMENT UNQUOTE IN 5 2(A) CAN ONLY MEAN THE SOVEREIGN GOVERNMENT. (THIS COULD CAUSE THE CHINESE TO TREAT THE CLAUSE AND THEREFORE THE ORDINANCE AS A WHOLE AS SEEKING TO BIND THE CENTRAL AUTHORITIES ON MATTERS OUTSIDE THE AUTONOMY OF THE SAR
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