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likely to continue for certainly one, probably two, and possibly more, years. It is also clear from the Memorandum, though not on the face of the Bill, that Hong Kong is taking a risk in confining Clause 7(3) to Article 14 party and party rights.
4. The critics of the Bill, including the Chinese, are unlikely to miss this point and it will not be easy to refute the contention that, until Hong Kong puts its other laws in order, the enactment of a Bill of Rights is premature and more a gesture than a real safeguard for the rights of individuals. I should draw your attention to the penultimate sentence of paragraph 39 of the Memorandum which states "However, such a deferment [of the application of Article 14 to the Government] in addition to the proposed freeze in respect of enactments would inevitably draw severe criticism and comments on the futility of the whole BOR exercise". I do not think that the chance that HKG is taking on Article 14 vis-à-vis the government will disarm that criticism or invalidate that comment.
5. I have given some consideration to the possibility of toning down these provisions of the Bill so that they produce a less damaging impression. I do not think that anything can be done about Clause 14 which, it will be noted, now deals not only with legislation and looks much worse than the original Clause 1(2), but extends to executive acts done under legislation. If Hong Kong do not think they are safe without the provision set out in Clause 14 there is nothing that can be done to disguise this and it would be a fraud on the people of Hong Kong to pretend otherwise. It might, however, be possible to remove subsection (3) from Clause 7 and insert an equivalent provision in Clause 14, the object of this being to show that the difficulty with Article 14 was of a similar nature to that of existing legislation, ie the need to bring the law as a whole into conformity with the ICCPR and that the problem was only seen as a temporary one. A new subsection in Clause 14 might be worked out on the lines of:-
" ( )
Article 14 does not confer upon any person any right other, or more extensive, than the rights existing under any law in force before the commencement of this Ordinance."
There could then be a reference to that new subsection in Clause 14 (4) so that it would expire one year after the commencement of the Ordinance. Alternatively provision could be made so that the new subsection would expire in one year's time unless in the meantime LegCo added it to the Schedule in which case subsection (5) would apply. А
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