CODE 18-77
CONFIDENTIAL
Reference
(ii)
8.
force in 1976. Part III A of the HK Ordinance are for a wholly unrelated purpose and therefore not covered by the reservation at all.
The provisions are covered in principle but only when HKG is actually applying them (i.e. essentially the same sort of legality test as might apply under Article 9(1). See paras 5 and 6 above).
I conclude from this that it would be unsafe to rely solely on the reservation as a defence to what would otherwise be a breach of Article 9. My advice in general terms would be that any necessary defence should be based primarily on the argument that "due diligence" is being exercised and that there is no breach of Article 9.
9. Incidentally, I note from my search of the (voluminous quantity of) legal advice on the 1982 files (HKK 243/1, Parts A-G) that, before and after the passing of the amendments to the Immigration Ordinance concerning VBP, we advised HKG that their legislation was not compatible with the ICCPR, and suggested certain amendments (see, for example, a letter from Mr Clift, HK & GD, to the Attorney General, of 6 October 1982 (at folio 228 and related telegrams). However, I am not clear what the follow-up to this was, whether the amendments were made (it looks to me as though they were not) and whether the HRC has commented on these points when considering periodic reports for Hong Kong. David Walwyn is checking out HRC comments; it would be helpful if you could find out how the discussion between us and HKG on the 1982 amendments was concluded.
(b) HKG's proposed legislative amendments
10.
I assume that the desired effect of making the power to detain under Section 13D unambiguously indefinite is to protect the exercise of it against judicial review, in the light of the Pham Van Ngo judgment, and to increase the chances of it being covered by the reservation. Of course I need to see the exact wording proposed, but I doubt that it is likely to achieve the intended effect.
11.
Argument (i) in para 7 above could still be deployed whatever the proposed amendment says. Argument (ii) might also still be available. A court or RC might still enquire whether the detention is for the authorised purpose (i.e. is screening or deportation genuinely "pending"). If Section 13D is rewritten so as to broaden the purposes for which VBP can be detained or permit it for unspecified
JB1AAN
CONFIDENTIAL