CODE 18-77
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three points can be satisfied, the length of detention per se may not matter.
5.
The HRC, in considering the closed camp policy in general terms, might well (and perhaps ought to) be) be sympathetic to arguments which apply to VBP as a group (eg deterrence, public order, etc) - though they might go on to ask whether it is not possible to differentiate between VBP who could safely be permitted a greater degree of freedom and those who cannot. Being an international body, their approach is bound to be informed by an awareness of how much greater Hong Kong's efforts to handle the problem humanely have been than many other countries in the region. On the other hand, a court is more likely to focus primarily on the evidence relating to the individual(s) before it. Hence the need for us and Hong Kong to consider how best to explain and substantiate the need for detention at both the general and individual level.
6.
My
As far as the ICCPR is concerned, I think the problem now centres primarily on Article 9(1) rather than 9(4). impression is that since 1982 when concern was expressed about the inadequacy of habeas corpus as a remedy, the scope of review has widened considerably, as recent cases such as Liew Kar-seng illustrate. Even if it does not fully satisfy the requirements of 9(4), these will be satisfied once Article 5 BOR is enacted and unfrozen. Thereafter, the problem will not be that there is no effective remedy available but rather that there is one!
7. I imagine that HKG AGC have the same collections of HRC decisions as we have. (Selected Decisions of the HRC under the Optional Protocol, Vols 1 and 2, and loose papers covering subsequent sessions up to the 39th in June 1990. We had been told that these papers cover all decided cases, but gaps have recently been discovered.) However, in case they have not, you might like to fax this and Mr Rankin's minute to Phil Dykes so that he can let us know if he requires any of the materials referred to. We would, of course, also be interested in any comments he may have on the above.
TM Barett
Jill Barrett
JB1AAV
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