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provision such as is now proposed. It has been argued that the provision will do no more than require the courts to look at the Basic Law and, having read the object of the BOR, to focus on Article 39 of the Basic Law and so decide that all "subject to the Basic Law" means is that the BOR is intended to give effect to Article 39. It is possible that the courts would follow this reasoning. It is also possible that they could follow a different reasoning and conclude that this suggested provision requires the courts to ensure that the rights conferred by the BOR must be consistent with the specific provisions of Chapter III of the Basic Law and, again this is a significant point, also be subject to Article 23.
Were this provision to be included, the Legislator would be falling down on what should be his obligations to make the law as clear as possible and, what is more, the effect of this provision could well add force to the argument set out in paragraph 4 above, thus impairing to the point of destruction the political object of enacting a BOR to ensure the primacy of Article 39.
8. It may be argued that, so long as the inhabitants of the SAR have some measure of protection of human rights such as are conferred by the highest common factor of Chapter III taken as a whole, it does not really matter whether the various laws are clear or unclear or whether the provisions of the ICCPR should have effect rather than the specific provisions set out in Chapter III; after all it is highly unlikely that China will accede to the Covenant and there will be no international reporting mechanism after 1997; more important than clarity or the specific content of rights is to get Chinese agreement to the Bill. It would be difficult for a lawyer to agree with such an Olympian view as regards prospective legislation. Nor, indeed, would such a view commend itself to those in Hong Kong who set store in doing whatever is possible to establish the ICCPR standard as domestic law in Hong Kong.
4 October 1990
4 PFABV
Paul Fifoot
Legal Advisers
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