TNAG-1414-FCO40-1894-Future-of-Hong-Kong-fundamental-rights-and-freedoms-1985 — Page 8

CONFIDENTIAL

IMMEDIATE

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Section XIII of Annex I.

The fre

We should wait and see what the Basic Law says about Rights and freedoms before deciding whether a Bill'

of Rights might be necessary.

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HONG KONG AGREEMENT

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CONFIDENTIAL

FM HONG KONG

CONFIDENTIAL

TO IMMEDIATE FCO

TELNO 1992

OF 24091OZ SEPTEMBER 85

нинос

RECEIVED I

DESK U

INDEX

- 4 DEC 1985

05

INFO IMMEDIATE PEKING

O

HOARE'S LETTER OF 23 AUGUST TU EHRMAN : FUNDAMENTAL RIGHTS AND

FREEDOMS

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1. YOU SHOULD BY NOW HAVE RECEIVED LUR (COPIED TO THOMSON IN PEKING), WHICH ENCLOSED A MEMORANDUM FROM BURROWS OUTLINING VARIOUS WAYS IN WHICH INDIVIDUAL RIGHTS COULD BE INCORPORATED INTO HONG KONG LAW, AND CONSIDERING THE ADVANTAGES AND DISADVANTAGES OF EACH.

2. WE HAVE DISCUSSED THE POINTS RAISED BY BURROWS IN OUR INTERNAL JLG STEERING GROUP, AND OUR PRELIMINARY CONCLUSIONS ARE AS FOLLOWS :

(A) IT WOULD BE BEST IF THE BASIC LAW GAVE THE FORCE OF LAW TO THE PROVISIONS OF THE JOINT DECLARATION CONCERNING THE APPLICATION TO THE SAR OF THE TWO INTERNATIONAL COVENANTS, IN AS BRIEF AND SIMPLE

A WAY AS POSSIBLE (E.G. AS SUGGESTED IN PARA 4 OF BURROW'S MEMORANDUM). IT WOULD BE DIFFICULT FOR THE CHINESE TO OBJECT TO THIS, AND SHI JIURONG REVEALED AT THE FIRST SESSION OF THE JLG THAT THE CHINESE DO ON OCCASION GIVE TREATIES THE FORCE OF LAW, PREVAILING OVER OTHER LAWS. ANY ATTEMPT TO HAVE RIGHTS AND FREEDOMS CATALOGUED IN THE BASIC LAW WOULD BE LIKELY TO LIMIT RATHER THAN EXTEND THE FREEDOMS THAT THESE COVENANTS PROVIDE.

(B) PUBLIC CONFIDENCE MAY REQUIRE SOME FURTHER, LOCALISED AFFIRMATION OF THESE RIGHTS AND FREEDOMS. HOWEVER, AS THE BASIC LAW WILL FORM PART OF THE LAWS OF HONG KONG, THERE WOULD BE NO NEED TO RESTATE ITS PROVISIONS IN LOCAL LEGISLATION. ANY ATTEMPT AT

CODIFICATION WOULD RUN THE RISKS MENTIONED ABOVE, AND WOULD ALSO

CREATE ENDLESS SCOPE FOR DISPUTES REGARDING THE APPARENT LIMITATIONS

ON FREEDOMS THAT ARE GENERALLY ACCEPTED IN ANY DEMOCRATIC SOCIETY. AT THIS STAGE, WE THINK THE ANSWER MAY BE TO PROVIDE, AT A SUITABLE TIME AND IN SOME APPROPRIATE CONTEXT, EXPLANATORY MATERIAL ON THE EXTENT AND PROVISIONS OF THE TWO UN COVENANTS FOR THE PURPOSES OF

PUBLIC EDUCATION.

(C) THE BEST APPROACH IS PROBABLY TO PLAY THIS LONG AND NOT TO RESPOND, AT LEAST AT THIS STAGE. TO ANY CALLS FOR A HONG KONG **BILL OF RIGHTS''. WE SHOULD ATTEMPT TO INFLUENCE THE DRAFTING OF THE BASIC LAW TO ACHIEVE THE AIM SET OUT IN (A) ABOVE. ONCE THE BASIC LAW IS PUBLISHED. WE SHOULD EXPLAIN PUBLICLY (IF NECESSARY IN AN INDIRECT MANNER) THE IMPLICATIONS OF ITS PROVISIONS AND CONSIDER THE NEED FOR FURTHER ACTION LOCALLY IN THE LIGHT OF PUBLIC OPINION AT THE SAME TIME.

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3. THERE HAS RECENTLY BEEN SOME DISCUSSION OF WHETHER OR NOT WE

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SHOULD HAVE A BILL OF RIGHTS IN HONG KONG, BOTH IN THE CONTEXT

OF THE BASIC LAW AND DURING THE PASSAGE OF THE LEGISLATIVE COUNCIL (POWERS AND PRIVILEGES) ORDINANCE. AT LEAST ONE OF THE CANDIDATES FOR THE LEGCO ELECTIONS. MR. HENRY LITTON. IS A STRONG

PROPONENT OF THE IDEA OF A BILLOF RIGHTS. IT IS THEREFORE ALMOST CERTAIN THAT THE ISSUE WILL AT SOME STAGE BECOME A SUBJECT OF POPULAR DEBATE, AND IT IS POSSIBLE THAT SOME LEGISLATIVE

COUNCILLORS (E.G. LITTON. IF ELECTED) MAY PRESS FOR A BILL OF RIGHTS TO BE INTRODUCED IN HONG KON LAW. IN ANY SUCH PUBLIC DEBATE. THE ADMINISTRATION WOULD PROBABLY HAVE TO TAKE A RELATIVELY NEUTRAL STANCE. WHILE MAKING THE POINT THAT ALL THE NECESSARY PROVISIONS ARE ALREADY CONTAINED IN THE JOINT DECLARATION, AND IN THE TWO INTERNATIONAL COVENANTS AND THE COMMON LAW TO WHICH THE JOINT DECLARATION REFERS. IN THE PRESENT CLIMATE. IT IS ONLY TOO

LIKELY THAT FIRM OPPOSITION TO THE IDEA OF A BILL OF RIGHTS'*

WOULD BE MISINTERPRETED AS ANOTHER ATTEMPT BY THE HONG KONG

GOVERNMENT TO CIRCUMSCRIBE THE FREEDOMS PROVIDED FOR IN THE JOINT

DECLARATION.

YOUDE

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"HONG KONG AGREEMENT

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