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AND GIVE THEM AN EXCUSE TO TERMINATE THE ORDINANCE UNDER ARTICLE 160 OF THE BASIC LAW). WE COULD OMIT THE CLAUSE AND ANY REFERENCE TO ARTICLE 4 OF THE COVENANT ON THE GROUNDS THAT IT IS NOT DIRECTLY APPLICABLE LAW (IT RELATES TO A QUALIFIED POWER OF THE LEGISLATURE AND EXECUTIVE) AND IS NOT A PROVISION THAT IS QUOTE IN FORCE UNQUOTE UNLESS A PUBLIC EMERGENCY IS PROCLAIMED.
HOWEVER, WE SEE DIFFICULTY IN HAVING NO REFERENCE TO A STATE OF EMERGENCY WHICH WOULD JUSTIFY A DEROGATION AND PRESCRIBE THE EXTENT OF DEROGATION PERMISSIBLE. AN ALTERNATIVE WOULD THEREFORE BE TO DELETE CLAUSE 5 AND INCLUDE IN CLAUSE 4(1) OF THE BILL A SECOND SENTENCE CONSISTENT WITH ARTICLE 4 OF THE COVENANT, AS FOLLOWS:
QUOTE DURING ANY STATE OF EMERGENCY WHICH HAS BEEN OFFICIALLY PROCLAIMED THE PROVISION OF THIS SUBSECTION SHALL HAVE EFFECT, SUBJECT TO ANY MEASURE WHICH CONFORMS WITH THE CONDITIONS SPECIFIED IN PARAGRAPH (1) AND (2) OF ARTICLE 4 OF THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.
UNQUOTE
IT IS NOT THE CASE (LAST SENTENCE OF YOUR PARA 8) THAT IF CLAUSE 5 WERE DROPPED ALTOGETHER, THE MATTER COULD BE DEALT WITH UNDER ARTICLE 18 (PARA 4) OF THE BASIC LAW. THE BASIC LAW DEALS WITH THE DECLARATION OF AN EMERGENCY BY THE CENTRAL AUTHORITIES, BUT NOT THE MEASURES THAT CAN BE TAKEN UNDER IT IN DEROGATION FROM
THE BILL OF RIGHTS. AND MOREOVER AN EMERGENCY THREATENING THE LIFE OF THE NATION COULD EXIST IN CIRCUMSTANCES WHICH WERE NOT BEYOND THE CONTROL OF THE GOVERNMENT OF THE SAR, AND IN THAT CASE IT COULD WELL BE THAT THE SAR WOULD HAVE TO TAKE THE NECESSARY
MEASURES.
REMEDIES (PARA 13 OF TUR)
5. WE ARE NOT AWARE OF ANY SUCH CASES. MOREOVER, IT WOULD NOT NECESSARILY FOLLOW THAT THE ABSENCE OF POWER TO INJUNCT THE CROWN
MEANS THAT THERE IS NO EFFECTIVE REMEDY.
THIRD PARTY RIGHTS (PARA 14 OF TUR)
6. IN OUR LEGAL ADVISERS' VIEW, THE COVENANT DOES NOT SPECIFY PARTICULAR WAYS IN WHICH THE OBLIGATIONS ON STATES PARTIES ARE TO BE CARRIED OUT IN DOMESTIC LAW. THE BILL OF RIGHTS COULD THEREFORE BE CONFINED TO PUBLIC AUTHORITIES SO LONG AS OTHER LEGISLATION EFFECTIVELY COVERS PRIVATE PERSONS. HOWEVER, THE REASON YOU HAVE GIVEN FOR ENACTING A BILL OF RIGHTS IS PUBLIC SUPPORT FOR A SINGLE PIECE OF LEGISLATION (PARA 6 OF YOUR
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}