CONFIDENTIAL
22
006073
MDLIAN 9629
CONFIDENTIAL
FM HONG KONG
TO PRIORITY FCO
TELNO 138
OF 110345Z JANUARY 90
127:
HKD2411
RECEIVES IN REGISTRY
20 FEB 1990
REGISTRY
Action Taken
TOP COPY Q DIST ?
OUR TELNO 127: EXCO DECISION ON BILL OF RIGHTS
AS BACKGROUND TO THE EXCO DECISION REPORTED IN OUR TUR, YOU MAY LIKE TO HAVE THE FOLLOWING RECORD OF MEMBERS DISCUSSION ON THE
DRAFT BILL OF RIGHTS:·
(A) MEMBERS AGREED IT WAS IMPORTANT THAT THE BILL OF RIGHTS SHOULD CLOSELY MIRROR THE PROVISIONS OF THE ICCPR AND ARGUED THAT, IN ESSENCE, THE BILL SHOULD BE SUPERIOR TO OTHER LOCAL LEGISLATION BOTH EXISTING AND FUTURE. PUBLIC CONFIDENCE WOULD BE GIVEN A BOOST IF ACTION COULD BE TAKEN TO ENSURE THAT, AS FAR AS POSSIBLE, THE BILL SURVIVED INTACT BEYOND 1997. BY MIRRORING THE ICCPR, PRACTICAL AND POLITICAL DIFFICULTIES WOULD BE CREATED IF THE SARG SOUGHT TO REPEAL OR AMEND THE BILL. ARTICLE 39 OF THE CURRENT DRAFT BASIC LAW CLEARLY ENTRENCHED THE ICCPR. HOWEVER, MEMBERS NOTED THAT IN THE FINAL ANALYSIS, NOTHING COULD PREVENT THE SARG FROM REPEALING OR AMENDING THE BILL.
(B)
MEMBERS ACCEPTED THAT COMPLETE ENTRENCHMENT WAS UNATTAINABLE
SEMI COLON FUTURE LEGISLATURES COULD NOT BE BOUND OTHER THAN THROUGH THE CONSTITUTIONAL MACHINERY. GIVEN CHINESE CONCERN THAT THE BILL SHOULD NOT BE SUPERIOR TO THE BASIC LAW, IT WAS EXTREMELY UNLIKELY THAT THEY WOULD EVER CONTEMPLATE ENTRENCHING THE BILL THROUGH THEIR CONSTITUTIONAL MACHINERY.
(C) WHILST ENTRENCHMENT WAS DESIGNED AS AN INHIBITING FACTOR, NEVERTHELESS THE ADMINISTRATION OF THE DAY COULD DELIBERATELY OVERRIDE PROVISIONS IN THE BILL BY ENSURING THAT THE AMENDING LEGISLATION WAS IN A FORM AND MANNER PRESCRIBED BY THE BILL AS BEING CAPABLE OF PREVAILING OVER THE BILL ITSELF.
(D) IT WOULD BE DIFFICULT TO ARGUE THAT THE ICCPR COULD ONLY BE IMPLEMENTED THROUGH ENACTMENT OF A BILL OF RIGHTS GIVEN THAT THE PROVISIONS OF THE ICCPR WERE ALREADY, OR COULD IN ANY EVENT BE GIVEN EFFECT IN HONG KONG THROUGH EXISTING LAW.
(E) CARE SHOULD BE TAKEN NOT TO JEOPARDISE CHINESE AGREEMENT IN
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