CONFIDENTIAL
HKC241/5
41
000050 MDHOAN 3026
CONFIDENTIAL
FM FCO
TO DESKBY 08010OZ HONG KONG
TELNO 871
OF 07183OZ MAY 91
INFO PRIORITY PEKING, UKREP JLG HONG KONG
3238
fu 915
YOUR TELNOS 1378-9: BILL OF RIGHTS: INTER-CITIZEN RIGHTS
IT
1. WE WERE GRATEFUL FOR TURS. IT IS CLEAR FROM THE LARGE VOLUME OF LITIGATION IN COMMON LAW COUNTRIES WITH BILLS OF RIGHTS THAT YOU SHOULD TAKE GREAT CARE IN DRAFTING CLAUSE 7. WOULD BE HELPFUL TO KNOW WHICH PRECEDENTS YOU HAVE RESEARCHED IN DRAWING UP YOUR OPTIONS, EG CASE LAW IN THE US AND INDIA ON DEFINITION OF STATE'', THE CANADIAN EXPERIENCE ETC.
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IN THE TIME AVAILABLE, WE HAVE BEEN ABLE TO GIVE TURS ONLY PRELIMINARY CONSIDERATION. IN THE LIGHT OF THE FOLLOWING, YOU MAY PREFER TO POSTPONE YOUR MEETING WITH THE LEGCO AD HOC GROUP OR TO DISCUSS THE ISSUES FURTHER WITH THEM BEFORE FINALISING CLAUSE 7.
2.
WE ARE BROADLY CONTENT WITH THE STRUCTURE OF YOUR CLAUSE, IE THE THREE-FOLD DIVISION (A), (B) AND (C). BUT WE THINK (A) NEEDS MORE CAREFUL THOUGHT AND EXPANSION. WE ASSUME THAT YOU HAVE DRAWN UP A LIST OF THE VARIOUS PUBLIC BODIES AND PRIVATE BODIES EXERCISING PUBLIC FUNCTIONS IN HONG KONG AND DECIDED WHETHER OR NOT YOU WANT EACH TO BE COVERED BY THE BILL OF RIGHTS. WITHOUT SEEING THIS BACKGROUND WORK, WE CANNOT JUDGE WHETHER YOUR DRAFT MEETS YOUR DESIRED OBJECTIVE. IT DOES NOT HELP TO TURN TO THE ICCPR: SINCE THE COVENANT DOES NOT REQUIRE A BILL OF RIGHTS AT ALL IT CANNOT REQUIRE A BILL OF RIGHTS TO COVER ANY PARTICULAR BODIES. BUT, IN OUR VIEW, THERE IS ADVANTAGE IN COVERING AS WIDE A RANGE OF PUBLIC AND PUBLIC/PRIVATE BORDERLINE BODIES AS POSSIBLE IN THE PRESENT EXERCISE. THE FEWER BODIES COVERED BY THE BILL OF RIGHTS, THE MORE IMPORTANT IT WILL BE TO ENACT SEPARATE LEGISLATION LATER TO COVER THE GAPS (AND WE ARE AGREED THAT SUCH LEGISLATION SHOULD BE KEPT TO A MINIMUM FOR POLITICAL REASONS).
3. WE NOTE THAT SUB-CLAUSE (2) IN SECOND TUR IS BASED ON THE INTERPRETATION AND GENERAL CLAUSES ORDINANCE. BUT THAT ORDINANCE STATES THAT ''PUBLIC BODY'' INCLUDES/INCLUDES THE BODIES AT (A) TO (H): YOUR DRAFT SAYS THAT "PUBLIC BODY" MEANS/MEANS (A) TO
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