CONFIDENTIAL
07477%
MDHOAN 1506
DESCENT. IT ALSO APPEARS THAT BENEFICIARIES OF THE POLICY DO NOT HAVE AN IMMEDIATE RIGHT TO A LICENCE BUT ARE SUBJECT TO AN UNLIMITED WAITING PERIOD (PARA 3 OF YOUR TELNO 1554 1989). WE WOULD SUGGEST THAT THE SAME DOUBT ABOUT WHETHER THE POLICY CONSTITUTES A QUOTE CUSTOMARY RIGHT UNQUOTE WITHIN THE MEANING OF S13 NTO MIGHT APPLY AS FOR THE RENT CONCESSION POLICY.
GRATEFUL FOR YOUR VIEWS.
LAND SUCCESSION LAW
5. HERE THE RULES OF CUSTOMARY LAW CLEARLY PREDATE 1898 AND ARE
APPLIED BY VIRTUE OF $13 NTO.
ICCPR/BILL OF RIGHTS
6. WE SUGGESTED IN MY TELNO 243 (PARA 3) THAT THE RIGHT TO BE EQUAL BEFORE THE LAW REFERRED TO IN ARTICLE 26 OF THE ICCPR COULD BE INTERPRETED NARROWLY. WE HAVE SINCE EXAMINED THE DETAILED COMMENT BY THE HUMAN RIGHTS COMMITTEE (OF NOVEMBER 1989) PARA 12 OF WHICH READS:
IT
QUOTE IN THE VIEW OF THE COMMITTEE, ARTICLE 26 DOES NOT MERELY DUPLICATE THE GUARANTEE ALREADY PROVIDED FOR IN
ARTICLE 2 BUT PROVIDES IN ITSELF AN AUTONOMOUS RIGHT.
PROHIBITS DISCRIMINATION IN LAW OR IN FACT IN ANY FIELD REGULATED AND PROTECTED BY PUBLIC AUTHORITIES. ARTICLE 26 IS THEREFORE CONCERNED WITH THE OBLIGATIONS IMPOSED ON STATES PARTIES IN REGARD TO THEIR LEGISLATION AND THE APPLICATION THEREOF. THUS, WHEN LEGISLATION IS ADOPTED BY A STATE PARTY, IT MUST COMPLY WITH THE REQUIREMENT OF ARTICLE 26 THAT ITS CONTENT SHOULD NOT BE DISCRIMINATORY. IN OTHER WORDS, THE APPLICATION OF THE PRINCIPLE OF NON- -DISCRIMINATION CONTAINED IN ARTICLE 26 IS NOT LIMITED TO THOSE RIGHTS WHICH ARE PROVIDED FOR IN THE COVENANT UNQUOTE.
THIS MEANS THAT WE COULD BE EXPOSED TO CRITICISM BY THE COMMITTEE IN RELATION TO ALL THREE POLICIES, AND ACTIONS IN THE HONG KONG COURTS UNDER ARTICLE 23 OF THE BILL OF RIGHTS ARE LIKELY. WE WOULD NOT NECESSARILY ACCEPT THAT THE COMMITTEE'S
VIEW IS A BINDING OR AUTHORITATIVE INTERPRETATION BUT IN VIEW OF CLAUSE 2(3) (A) AND (B) OF THE DRAFT BILL OF RIGHTS, THE COURTS WOULD BE LIKELY TO INTERPRET ARTICLE 23 IN ACCORDANCE WITH IT.
THESE COMMENTS ALSO AFFECT OUR READING OF THE HUMAN RIGHTS COMMITTEE'S COMMENTS REFERRED TO IN PARA 5 OF YOUR TELNO 3626 1989. WE WOULD NEED TO LOOK CAREFULLY AT YOUR GROUNDS FOR CONSIDERING THAT YOUR POLICIES WERE QUOTE BASED ON REASONABLE
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