TNAG-2173-FCO40-3110-Hong-Kong-Bill-of-Rights-1990 — Page 159

CONFIDENTIAL

62

TOP COPY Q DIST ?

022527

MDHOAN 4335

CONFIDENTIAL

FM FCO

TO IMMEDIATE HONG KONG.

TELNO 491

OF 02160OZ MARCH 90

HKD2411.

RECEIVED IN HEG'

-

·9 MAR 1990

TRY

Taken

DESK OFFICER

PA

INFO PRIORITY PEKING, UKREP JLG HONG KONG

58

58

OUR TELNO 473: BILL OF RIGHTS

1

LEGAL ADVISERS HAVE HAD TWO DISCUSSIONS ON THE DRAFT BILL OF RIGHTS (BOR) WITH STOCK. THE DISCUSSIONS CONCENTRATED ON THE QUOTE ENTRENCHMENT/SUPREMACY UNQUOTE ISSUE AND A NEW POINT NAMELY THE EFFECT ON ARTICLE 22 OF THE RECENT AMENDMENTS TO THE BASIC LAW RELATING TO THE REQUIREMENTS THAT EXECUTIVE COUNCILLORS, 80 PER CENT OF LEGISLATIVE COUNCILLORS AND PRINCIPAL OFFICIALS SHALL BE CHINESE CITIZENS WITHOUT A RIGHT OF ABODE IN

OTHER COUNTRIES. STOCK HAS FAXED A NOTE OF HIS CONVERSATIONS

TO MATTHEWS.

2.

AS REGARDS THE NEW POINT, ARTICLE 22 OF BOR ALREADY DEPARTED FROM THE COVENANT IN SUBSTITUTING THE CONCEPT OF RIGHT OF ABODE FOR THE CONCEPT OF CITIZENSHIP. THE NEW REQUIREMENT IN THE BL THAT THE RELEVANT INDIVIDUALS SHALL NOT HAVE THE RIGHT OF ABODE ELSEWHERE FURTHER COMPLICATES THE MATTER. IT IS TRUE THAT SECTION 15 OF THE BILL MAKES THE INCLUSION OF ARTICLE 22(B) OF NO PRACTICAL SIGNIFICANCE (EXCEPT PERHAPS FOR LOCAL GOVERNMENT BODIES), BUT THE GENERAL OBSCURITY OF WHAT ARTICLE 22 IS INTENDED TO EFFECT, PARTICULARLY IN THE LIGHT OF THE RECENT AMENDMENTS TO THE BASIC LAW, IS SUCH THAT, IN OUR VIEW, IT WOULD SERIOUSLY CALL INTO QUESTION THE DRAFTING OF THE BILL IF IT WAS PUBLISHED IN THAT FORM.

3.

THE QUOTE ENTRENCHMENT/SUPREMECY UNQUOTE ISSUE IS, OF COURSE, OF MORE GENERAL CONCERN.OUR LEGAL ADVISERS DO NOT BELIEVE THAT THERE IS A QUOTE MANNER AND FORM UNQUOTE ISSUE AS REGARDS THE CONSTRUCTION FORMULA EITHER IN YOUR OWN RULE OF..CONSTRUCTIVE APPROACH (OPTION 4CII OR IN THAT PROPOSED IN RAGRAPH 3 OF OUR TELNO 170. USEFUL AS THESE ARE. THEY ARE ONLY CONSTRUCTION FORMULAE, AND DO NOT GIVE THE BOR ANY ENHANCED STATUS. THAT COULD ONLY BE ACHIEVED BY TIEING THE BOR TO THE LETTERS PATENT IN SOME WAY SUCH AS THAT SUGGESTED IN PARA 3 OF OUR TELNO 473. SUCH A COURSE WOULD SOLVE SOME OF YOUR PRESENT DIFFICULTIES IN THAT IT WOULD GIVE YOU A GOOD DEFENCE AGAINST CRITICISM THAT THE BOR WOULD NOT HAVE A SPECIAL STATUS COMPARABLE TO ENTRENCHMENT. WE DO NOT IGNORE THE POSSIBILITY THAT TO TIE IT TO THE LETTERS PATENT MIGHT FUEL

1

PAGE CONFIDENTIAL