TNAG-2152-FCO40-3071-Commonwealth-war-graves-in-Hong-Kong-1990 — Page 11

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I suggest the proviso at the beginning may be helpful in confirming that the Commission is not in any way attempting to avoid the general legal provisions governing the proper regulation of all cemeteries, which we accept should remain vested in the government of Hong Kong.

I appreciate that it may well be necessary to sub-divide section 115(1) and naturally I must leave the detailed drafting to you.

(b) Section 115(2)

For consistency I would suggest it is inappropriate for closure to be made without the agreement of the Commission. I assume that closure does mean only that no further burials will be permitted and not that visitors may be excluded. Closure to burials would cause us no difficulty and we should certainly not expect to withhold our consent unreasonably. Indeed I would be happy for such a provision to be written into the legislation. Exclusion of visitors though would cause us great concern and I should be grateful for your re-assurance that this is not a possibility. In order to avoid any misunderstandings, might it be possible to put this point beyond doubt by expanding the provision in the legislation, perhaps by reference to "closure to further burials"?

(c) Section 117(1)

Again it would not seem consistent for any such rules to be made in respect of our cemeteries without our agreement. I appreciate that such rules would normally be made primarily for our benefit and it would be most unlikely that the Commission would have any objections in these circumstances. Again therefore I would be quite happy for a specific provision to be included to the effect that our consent would not be withheld unreasonably, if that would be helpful.

(d) Section 119

The Commission subscribes to the principles laid down in the Geneva Conventions, that the remains of war dead shall not be disturbed without good reason, or to use the words of the first Additional Protocol to the Geneva Conventions, except for reasons of "overriding public necessity". In pursuance of this we would very much like to see as a proviso to both parts of section 119 something along the following lines:

"Provided also that in the case of a Commonwealth war grave no such order shall be made except for reasons of overriding public necessity and until 6 months' notice of intention to make such order and the reasons for it have been given in writing to the Commonwealth War Graves Commisison."

I have suggested 6 months' notice to take account of the fact we are based some distance away from Hong Kong and we would not, for instance, see any such notice published in the Gazette. A reasonable time would therefore be required for discussions about any proposed exhumation.

(e) I would suggest that it may be helpful to include a general definition of a Commonwealth war grave and the following is a definition which has found statutory favour elsewhere: