of deferring the application of Article 14 (privacy) for the Government should be examined in detail, particularly from the practical viewpoint of Government operations and from that of deviating from the ICCPR, thereby allowing the Chinese to argue that the implementation of other areas should be deferred pending further detailed consideration by their legal experts;
considering the implications of replacing the term "every citizen" in Article 21 by "all persons having the right of abode in Hong
Kong";
as
regards New Territories policies, examining the implications of leaving the law unchanged until such time as a competent body rules that the law is inconsistent with the ICCPR and/or the Bill of Rights;
whether page 1 of the Bill should include specific reference to the ICCPR applying to Hong
certain reservations, interpretations and declarations;
Kong
with
an explanation as to what is meant by "the State" in Article 20;
whether the heading to clause 13 on page 23 of the Bill
Part III could be simplified to, "Executive and Legislative Councils".
Argument
Interpretation : Modification of clause 2(3)
5
The legal policy behind this clause was to give judges an unequivocal direction on how to interpret the Bill of Rights. However, legal policy would not be seriously affected even without explicit reference in the Bill to "the origin of the Covenant and the need for uniformity in interpretation of rights recognized in that Covenant and similar rights recognized in other agreements having a similar origin". Courts will almost certainly find their way to using decisions in other jurisdictions relating to the ICCPR and decisions of the European Court of Human Rights to help interpret and apply the Bill of Rights, although it may take them longer to do so if there is no express direction to this effect. On the other hand, the deletion of clause 2(3) in its entirety is likely to invite queries, and a public explanation the legal position would not help minimise Chinese concerns
"internationalisation".
We therefore recommend that clause 2 (3) (a) should be retained and clause 2(3)(b) deleted.
of
over
CONFIDENTIAL