Ms Major
HKD 24+
3. M. 1990
Letter to Mr Stock
22nd May 1990
fe fairils
HK telno 1583: Bill of Rights
cc. Mr Paul Mr Whomersley
Ms Barrett
1. HK telno 1583 raises a number of points about the draft Bill of Rights ("BOR") which, apart from the question of third party rights, are not touched on in my minute of 10 May. I have summarised the present minute at paragraph 2 below. Having regard to the content and length of this minute, it would seem sensible to send it as a whole by fax to Hong Kong, rather than precis it in a telegramme.
Summary
2. (a) National security: It would not be
consistent with the Covenant to substitute the security of Hong Kong for national security, nor would such a substitution adequately protect the HK authorities from allegations of violations of the BOR if they took action, eg under a law enacted to give effect to Article 23 of the BL. Although the definition of national security in Clause 2(1) of the Bill is probably necessary now, it will not strictly be necessary after 1997, though it may be desirable to retain it for the guidance of the Courts.
(b) Public emergencies: I agree that Article 4 of the Covenant should not be repeated in the BOR; instead it would be prudent to add to Clause 4 of the Bill the sentence suggested in para 4 of FCD Telmo 1043. Although the declaration of the emergency probably has to be made by the Central Authorities, the authority taking measures in derogation of the BOR would not necessarily be the CPG; 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.
(c) Remedies: We are not aware of any such case. However it does not necessarily follow that the absence of a power to injunct the Crown means that there is no effective remedy.
(d) Third party rights: In my view, the Covenant does not require that the BOR should provide a right of recourse against private parties if such recourse as is necessary effectively to ensure the rights set out in the Covenant is provided in other laws of Hong Kong. However, other common law jurisdictions have bills of rights where the right of recourse for violations is not confined to recourse against public authorities and
124.
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