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002625 MDLIAN 1739
7. AN AMENDMENT TO THE BOR TO INSERT A REFERENCE TO THE BASIC LAW ALONE WOULD BE VERY BADLY RECEIVED. THE PUBLIC, INCLUDING LIBERALS, HUMAN RIGHTS ACTIVISTS AND THE MEDIA, WOULD INTERPRET THIS AS A KOWTOW TO THE CHINESE, AS ALLOWING THE CHINESE TO INTERFERE WITH THE ADMINISTRATION AND LEGAL SYSTEM OF HONG KONG BEFORE 1997 AND IN ADVANCE OF THE COMING INTO EFFECT OF THE BL, AND AS ROBBING THE BILL OF RIGHTS ITSELF OF SUBSTANTIVE AND SYMBOLIC FORCE. ON THE OTHER HAND, A CLEAR STATEMENT THAT THE BOR IS SUBJECT TO THE LETTERS PATENT (AS AMENDED TO ENTRENCH THE ICCPR) BEFORE 1997 AND THE BL THEREAFTER WOULD BE EASIER TO EXPLAIN TO LEGCO AND THE PUBLIC, PARTICULARLY IF THIS EXPLANATION IS ACCOMPANIED BY CHINESE PUBLIC ACCEPTANCE OF THE BOR. WE WOULD OF COURSE NEED TO PROTECT OUR INTERNATIONAL POSITION VIS-A-VIS THE CHINESE BY PLACING FIRMLY ON RECORD WITH THE CHINESE AS WELL AS PUBLICLY OUR VIEW THAT THE ICCPR (AND THEREFORE BL ARTICLE 39) SHOULD TAKE PRECEDENCE IN ANY CONFLICT BETWEEN DIFFERENT PROVISIONS OF THE BL, BECAUSE ITS CONTINUED APPLICATION IS PROVIDED FOR IN THE JOINT DECLARATION.
8. A CHINESE STATEMENT THAT THE BILL OF RIGHTS WAS INCOMPATIBLE WITH THE BASIC LAW WOULD CERTAINLY BE A BLOW TO PEOPLE'S CONFIDENCE IN ARRANGEMENTS FOR THE FUTURE, AND WOULD INCREASE SUBSTANTIALLY THE ANXIETY OF THE LOCAL POPULATION. A CHINESE COMMITMENT TO REPEAL THE BOR IN 1997 WOULD OF COURSE BE MUCH WORSE. IT WOULD DAMAGE BOTH THEIR AND OUR ATTEMPTS TO RESTORE
CONFIDENCE POST 4 JUNE.
9. GIVEN THAT AN OPEN DENUNCIATION OF THE BOR WOULD BE HIGHLY VISIBLE, THE ADVERSE EFFECT WHICH IT WOULD CREATE LOCALLY WOULD BE FELT BY A MUCH WIDER SECTOR OF THE COMMUNITY, AND HAVE MUCH GREATER IMPACT, THAN ANY LOCAL REACTION WHICH WE MIGHT GET BY TAKING EITHER OF THE TWO COURSES OF ACTION IN PARAGRAPH 7 ABOVE.
CONSEQUENTLY THE LEAST OBJECTIONABLE COURSE OF ACTION IS TO GO FOR A CLEAR REFERENCE THAT THE BOR IS SUBJECT TO THE LETTERS PATENT BEFORE 1997 AND THEN THE BL AFTERWARDS, ON THE ASSUMPTION THAT PRIOR AGREEMENT IS FIRST REACHED WITH THE CHINESE THAT THIS
WOULD ENABLE THEM TO ACCEPT THE BILL OF RIGHTS.
CURRENT STATE OF PLAY
10. THE LEGCO AD HOC GROUP ON THE BOR STARTED ITS SCRUTINY OF THE BILL AFTER THE SUMMER RECESS AND HAS ALREADY HAD ONE MEETING WITH THE ADMINISTRATION. THE GROUP WAS FORMED IN NOVEMBER 1989 TO STUDY BOR RELATED ISSUES AND EXAMINED CLOSELY THE EARLIER DRAFT BILL ISSUED FOR PUBLIC CONSULTATION (THE WHITE PAPER). BARRING
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