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to be ensured and on the other the limits of what restrictions may be imposed on those rights. An international convention of this kind is, of its very nature, totally distinct in its audience, in its specificity and in its drafting techniques from directly applicable domestic legislation. And a domestic Legislator has to take much more account of the need for certainty in the laws than the international Legislator, who has to accommodate different legal systems and who, in the field of human rights, must be only too aware of the tendency of international tribunals to a developing interpretation of international instruments. Further, clause 7 of the Bill may well be construed as going beyond the requirements of the ICCPR in that it purports to make the rights and obligations set out in the Bill binding upon private persons as well as governmental authorities even where this may not be the intended effect of the Covenant or accord with the interpretations of the Human Rights Committee.
7. No doubt, one of the main objects of the HKG in producing this particular Bill was the perfectly defensible one of trying to ensure that, so far as the domestic courts of Hong Kong are concerned, Article 39 of the Basic Law and the rights enshrined in the ICCPR would have primacy and prevail notwithstanding that similar rights, but of a possibly less protective character, are also contained in the Basic Law. However, the result of the way they have gone about it is a lack of clarity and inconsistency. The defects are to a great extent the consequence of the policy of keeping to the very wording of the Covenant in a domestic enactment. They are not the responsibility of the Hong Kong law draftsman. Nevertheless I see little prospect that the HKG will be prepared to make (indeed could now contemplate) the kind of change of approach necessary to produce a clearer Bill (though I hope they will be prepared to accept two additions essentially of a procedural nature, and not affecting substance, which I have suggested to Mr Stock). The courts will have to do their best with whatever text of the Bill of Rights eventually emerges, but, because the Bill is drafted the way it is, this will not be a simple task, and could well, for instance, require them to interpret the same comparable words in one way when they appear in one article and in a different way when they appear in another article!
8.
The suggestion has now been made that, in order to obtain Chinese acceptance of the BOR, we should include in the Bill a provision that it is "subject to the Basic Law".
This only adds to the obscurity. Of course, the BOR will be subject to the Basic Law in the sense that if it is not consistent with the Basic Law it may not, having regard to the provisions of
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