CONFIDENTIAL
11.5322
MDHOAN 1840
THEY NOT INCONSISTENT WITH CLAUSE 14(2)?
AGREE (B) NATIONAL SECURITY AND LIFE OF THE NATION: WE ARE PLEASED]
THAT THE SUGGESTION FOR SUBSTITUTING HONG KONG IN THE PROVISIONS RELATING TO NATIONAL SECURITY AND THE LIFE OF THE NATION IS INADVISABLE AND SHOULD BE ABANDONED. WE ALSO AGREE WITH THE DELETION OF CLAUSE 5(3).
CLAUSE 5(3).
WE ARE NOT CONVINCED THAT IT WOULD NOT BE PRUDENT TO RETAIN THE DEFINITION OF QUOTE NATIONAL SECURITY UNQUOTE IN CLAUSE 2(1) UP TO 1997.
(C) INTERPRETATION: WE AGREE THAT THERE IS SUBSTANCE IN THE OBJECTIONS NOTED IN PARAGRAPH 19. YOUR DECISION NOT TO RETAIN THE PROVISION EXCLUDING THE RULES OF INTERPRETATION MUST BE RIGHT. THE EFFECT OF CLAUSE 2(3)(B) AS REDRAFTED IS MERELY TO GET RID OF THE WORD QUOTE INTERNATIONAL UNQUOTE BUT DOES NOT ALTER THE SENSE OF THAT PARAGRAPH AT ALL. IT STILL MUST BE LIKELY TO ATTRACT CHINESE CRITICISM. CAN YOU NOT JUST RELY ON THE COMMON LAW? SEE HALSBURY'S LAWS, VOLUME 44, PARAGRAPH 870.
(D) PUBLIC EMERGENCIES: OUR CONCERN WAS THE REFERENCE TO QUOTE GOVERNMENT UNQUOTE AND ITS CHINESE CONNECTION. YOUR NEW TEXT WOULD APEAR TO ASSUME THAT CHINA WILL EITHER BE SUBJECT TO A DIRECT OBLIGATION TO COMPLY WITH THE ICCPR (WHICH IS QUESTIONABLE) OR UNDER AN OBLIGATION TO THE UK VIA THE JD TO COMPLY WITH THE ICCPR (WHICH IS SAFER GROUND). IS THIS CORRECT? EVEN SO, IS IT WISE TO DRAFT THE REFERENCE TO THE POWER TO DEROGATE IN THIS WAY, WHICH COULD STILL ENGAGE CHINESE SENSITIVITIES, RATHER THAN ON THE LINES OF THE MORE OBJECTIVE APPROACH INDICATED IN PARAGRAPH 4 OF OUR TELNO 1043?
(E) REMEDIES: SOMETHING APPEARS TO HAVE GONE WRONG WITH THE LANGUAGE IN THE SECOND SENTENCE OF PARAGRAPH 25. WE ARE PLEASED TO SEE THAT CLAUSE 6(1) IS TO BE OMITTED. AS REGARDS THE
REDRAFT OF CLAUSE 6(2) SOMETHING ON THE LINES OF THE PROVISO TO ARTICLE 15(2) OF THE BERMUDA CONSTITUTION QUOTED IN PARAGRAPH 7 OF OUR TELEGRAM 1043, MIGHT ALSO BE USEFUL EVEN IF YOU DO NOT WISH TO FOLLOW THE TEXT WHICH PRECEDES IT. AS REGARDS PARAGRAPH 28, WE DO NOT THINK IT IS REALLY AN ISSUE OF ONLY THE HIGH COURT HAVING JURISDICTION. IT IS CERTAINLY DESIRABLE THAT THE HIGH COURT SHOULD HAVE ORIGINAL JURISDICTION IN HUMAN RIGHTS MATTERS AND SUCH A PROVISION SHOULD BE MADE IF IT IS NOT ALREADY
IMPLICIT IN THE JURISDICTION OF THE HIGH COURT. THAT IS NOT TO SAY THAT HUMAN RIGHTS ISSUES COULD NOT BE RAISED IN OTHER COURTS. HOWEVER, WE REPEAT OUR VIEW THAT, PARTICULARLY WHERE
PAGE
2
CONFIDENTIAL