CONFIDENTIAL
(241)
150660
MDHIAN 8927
HKD241
CONFIDENTIAL
FM HONG KONG
TO DESKBY 16110OZ FCO
TELNO 2219
OF 160855Z JULY 90
INFO IMMEDIATE PEKING, UKREP JLG HONG KONG
23 JUL 1990
RYTOP COPY
Q DIST?
Tel ant
un jākon
221
238
pa hu
1817
OUR TELNO 2136: BILL OF RIGHTS
1 PARA 2 OF TUR REPORTED THAT EXCO WILL DISCUSS FURTHER A NUMBER
·
OF ISSUES RELATING TO THE DRAFT BILL OF RIGHTS THIS WEEK.
2. WE HAVE COMPLETED OUR STUDY OF THE OUTSTANDING ISSUES AND A COPY OF THE EXCO MEMORANDUM IS BEING FAXED TO YOU. IN SUMMARY, OUR CONCLUSIONS ARE :
(A) INTERPRETATION : TO DELETE CLAUSE 2(3)(B) ONLY. THE DELETION OF CLAUSE 2(3) IN ITS ENTIRETY WOULD BE LIKELY TO INVITE QUERIES, AND A PUBLIC EXPLANATION OF THE LEGAL POSITION WOULD NOT HELP MINIMISE CHINESE CONCERNS OVER QUOTE INTERNATIONALISATION UNQUOTE. ON THE OTHER HAND, EVEN WITHOUT CLAUSE 2(3) (B), THE COURTS WILL FIND THEIR WAY TO USING DECISIONS IN OTHER JURISDICTIONS RELATING TO THE ICCPR
AND DECISIONS OF THE EUROPEAN COURT ON HUMAN RIGHTS :
(B) OBLIGATIONS BETWEEN INDIVIDUALS TO KEEP CLAUSE 7 AS IT IS SO THAT ONLY THE APPLICATION OF ARTICLE 14 IN RESPECT OF OBLIGATIONS BETWEEN INDIVIDUALS IS DEFERRED. WE DO NOT THINK IT IS JUSTIFIABLE TO EXCLUDE THE ENTIRE BILL FROM APPLICATION TO INDIVIDUALS, NOR TO EXCLUDE ARTICLES 16 AND 22 AS THEY SHOULD NOT LEAD TO SUCCESSFUL
CLAIMS AGAINST THE PRIVATE SECTOR :
(C) DEFERRING ARTICLE 14 FOR GOVERNMENT : TO DO SO WOULD BE DIFFICULT TO DEFEND PUBLICLY, NOTWITHSTANDING THE OBVIOUS BENEFITS TO GOVERNMENT. WE HAVE THEREFORE DECIDED THERE SHOULD BE NO/NO DEFERMENT IN RESPECT OF GOVERNMENT :
(D) DEFINITION OF CITIZENS : TO EXPAND ARTICLE 21 SO AS TO COVER ALL PERSONS WITH THE RIGHT OF ABODE IN HONG KONG, AS WELL AS CITIZENS. AFTER 1997, THE ENTITLEMENT UNDER ARTICLE 21 WOULD OF COURSE BE SUBSUMED UNDER ARTICLE 24 OF THE BASIS LAW. TO RELY ON THE WORD QUOTE CITIZEN UNQUOTE ALONE NOW COULD CAST DOUBT ON WHETHER THE POLITICAL RIGHTS OF A SUBSTANTIAL SECTOR OF OUR COMMUNITY, I.E. THOSE WHO ARE NOT BDTCS, WOULD BE FULLY PROTECTED
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