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122) at the time.
which, in many cases, cover the same, but not necessarily the identical, ground as a number, but not all, of the rights set out in the ICCPR (see my minute to Ms Major of 15 May). Further, the second part of Article 23 of the Basic Law contains provisions which, to put it at its lowest, may be at variance with both the specific provisions of Chapter III and the provisions of the ICCPR. Although the question of how to reconcile Article 39 with the rest of Chapter III was raised with the Chinese when the BL was being drafted, nothing was done about it. There is no indication in the Basic Law as to what should be done in the event of internal conflict or inconsistency or as to which provision should prevail.
4.
It has been our hope that the courts will interpret Chapter III of the Basic Law so as to accord the highest degree of protection, ie the protection accorded by Article 39, and that if the specific provisions of Chapter III did not coincide with the relevant provisions of the ICCPR, the courts would, in effect, ignore them and decide cases on the basis of the Covenant as applied to Hong Kong. But that is only one possible way of resolving the inconsistencies. Another way, which may seem to some less likely but which cannot be excluded, is that the courts might attempt to find what is the common element of the general and specific provisions and only decide cases in accordance with the common elements. They could be led to this conclusion on the basis of the rule that effect must, so far as is possible, be given to every provision of an enactment and, therefore, an attempt must be made to reconcile what at first sight may appear to be inconsistencies. The possible effect of the second half of Article 23 following this kind of reasoning does not need any explanation. There is nothing we, or the HKG, can do about this text.
5. As regards the draft Bill of Rights Ordinance, the Hong Kong Government have selected what must be one of the least suitable ways of enacting human rights legislation in that they propose to set out as positive Hong Kong law the substantive articles of the ICCPR in most cases word for word as in the Covenant. However, it should be appreciated that the Covenant itself is addressed to States, and indirectly to the legislatures of States, and although some of the provisions are in terms of specific directly applicable rules, others are in terms which are essentially guidance to the legislature, setting out on the one hand what rights are 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
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