TNAG-2172-FCO40-3109-Hong-Kong-Bill-of-Rights-1990 — Page 69

CONFIDENTIAL

3. The rights in the Covenant are already entrenched as such:

Article 39 of the draft Basic Law states that "the provisions of the

International Covenant on Civil and Political Rights as applied to

Hong Kong shall remain in force and shall be implemented through the

laws of the Hong Kong SAR". But if the Bill itself is not expressly

entrenched, it would be open to the SAR Legislature to repeal the

Bill, and to implement the ICCPR in other ways, as at present. The Bill could have some form of superiority over other laws without being expressly entrenched. The Bill will override existing

inconsistent legislation and administrative practices upon its enactment. And the legal status of this Bill as legislation which implements an international agreement gives it a certain status. addition, Clause 4 requires the Attorney General to certify whether

new legislation would conflict with the Bill. Its effect is to

enable a clear and public warning to be given to the Legislative

Council if they are being asked to enact legislation which is inconsistent with the Bill of Rights and to inhibit them from doing

anything that conflicts with the Joint Declaration, the ICCPR or the

Basic Law (Article 39).

4.

In

Formal entrenchment would however provide a further guarantee

of human rights post-1997, and one to which Hong Kong people cearly

attach importance.

CONFIDENTIAL