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MAJOR DISAGREEMENT, WE THINK IT REALISTIC TO EXPECT THAT THE BOR WILL BE ENACTED EARLY IN 1991.
11. MEANWHILE, WE HAVE ALSO BEEN EXAMINING THE LATEST COMMENTS FROM FCO LEGAL ADVISERS. THIS MAY WELL RESULT IN SOME FINE-TUNING IN THE LANGUAGE OF THE BOR. BUT ANY CHANGE TO THE APPROACH AND FORMAT OF THE BOR AT THIS STAGE IS NEITHER CONTEMPLATED, NOR JUSTIFIED, FROM OUR POINT OF VIEW.
MAJOR ISSUES RAISED BY THE LEGCO AD HOC GROUP AND OUR PROPOSED RESPONSE
FREEZE PERIOD
12. WE HAVE PROPOSED THAT THE BOR SHOULD PROVIDE FOR A ONE-YEAR BLANKET FREEZE ON ITS APPLICATION TO EXISTING LEGISLATION, TO BE FOLLOWED BY A SELECTIVE FREEZE OF NO LESS THAN ONE YEAR. LEGCO WOULD DECIDE THE PRECISE LENGTH OF THE SELECTIVE FREEZE AND THE LAWS TO BE INCLUDED. THE AD HOC GROUP HOWEVER PREFERS A ONE-YEAR FREEZE FOR SELECTED STATUTORY PROVISIONS ONLY. WE EXPECT THE GROUP TO PRESS HARD FOR THIS. WE STILL HAVE STRONG RESERVATIONS AS TO THE PRACTICABILITY OF THE GROUP'S PROPOSAL, ESPECIALLY SINCE LEGCO WILL BE DISSOLVED IN JULY NEXT YEAR, AND ANY AMENDMENT BILLS NOT ACTUALLY PASSED BEFORE THEN WOULD HAVE TO BE REINTRODUCED AFRESH INTO THE NEW LEGISLATIVE COUNCIL. HOWEVER WE ARE TAKING A CLOSE LOOK AT PROGRESS ON THE REVIEW OF EXISTING LEGISLATION AND THE WORK TO BE DONE IN AMENDING EXISTING LAWS, BEFORE WE TAKE A FINAL VIEW.
INTERPRETATION OF THE BOR
13. THE WHITE BILL CONTAINED A PROVISION THAT IN INTERPRETING AND APPLYING THE BOR, REGARD SHOULD BE HAD TO THE ICCPR'S INTERNATIONAL ORIGIN AND THE NEED FOR UNIFORMITY IN INTERPRETATION OF THE RIGHTS RECOGNISED THEREIN AND SIMILAR RIGHTS RECOGNISED IN OTHER INTERNATIONAL AGREEMENTS. THIS PROVISION HAS SINCE BEEN DELETED, SINCE IT FEEDS CHINESE FEARS OF QUOTE INTERNATIONALISING UNQUOTE THE LEGAL SYSTEM OF HONG KONG. WE CONSIDER THAT, EVEN WITHOUT THE PROVISION, THE COURTS ARE LIKELY TO BE PERSUADED TO USE DECISION IN OTHER JURISDICTIONS RELATING TO THE ICCPR AND TO SIMILAR INTERNATIONAL AGREEMENTS (E.G. DECISIONS OF THE EUROPEAN COURT). CERTAIN MEMBERS OF THE AD HOC GROUP PREFER HOWEVER TO RETAIN THE ORIGINAL PROVISION. WE MAINTAIN THAT THE DELETION OF THIS PROVISION HAS NOT DILUTED THE LEGAL EFFECT OF THE BOR. WITH SUFFICIENT EXPLANATION, WE THINK THAT THE AD HOC GROUP WILL EVENTUALLY BE PERSUADED. TO OUR POINT
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