TNAG-2173-FCO40-3110-Hong-Kong-Bill-of-Rights-1990 — Page 219

CONFIDENTIAL

FM FCO

TO IMMEDIATE HONG KONG

TELNO 473

OF 01173OZ MARCH 90

INFO PRIORITY PEKING

CONFIDENTIAL

HKD241

RECEIVED IN RECISTRY

- 9 MAR 1990

DESK OFFICER

INDEX UKREP

PA

REGISTRY

58

017216

MDHOAN 4237

¿LSIG

dO5 dOu

BILL OF RIGHTS

OUR LEGAL ADVISERS HAVE BEEN GIVING FURTHER THOUGHT TO THE QUESTION OF ENTRENCHMENT BEFORE THE BILL IS PRESENTED TO EXCO IN

1.

6 MARCH.

2. THEY SUGGEST RETAINING CLAUSE 3(I) OF THE PRELIMINARY TO THE ACT BUT DELETING CLAUSE 4 ALTOGETHER.

3.

THE LETTERS PATENT WOULD BE AMENDED BY ADDING A NEW ARTICLE IDENTICAL TO COR BASED VERY CLOSELY ON) ARTICLE 39 OF THE DRAFT BASIC LAW. THE BILL OF RIGHTS WOULD THEN CONTAIN NO SAFEGUARD AGAINST INCONSISTENT FUTURE LEGISLATION, AND SO WOULD FACE NO LEGAL PITFALLS. THE AMENDMENT TO THE LETTERS PATENT WOULD PROVIDE FULL ENTRENCHMENT FOR THE BILL OF RIGHTS. THIS WILL, OF COURSE, FALL AWAY IN 1997 BUT BE REPLACED BY ARTICLE 39 ITSELF.

4 =

IT CANNOT BE GUARANTEED THAT SAR COURTS WOULD NECESSARILY APPLY THE PRINCIPLES OF (NEXT WORD UNDERLINED) ULTRA VIRES TO ARTICLE 39, BUT THIS WOULD BE REASONABLY LIKELY, ESPECIALLY IF A BODY OF CASE LAW RELATING TO THE 'ARTICLE 39' IN THE LETTERS

PATENT HAD BUILT UP BEFORE 1997.

5.

THIS METHOD SEEMS TO AVOID BOTH LEGAL OBJECTIONS AND POLITICAL DIFFICULTIES. WHILE PROVIDING FULL CONSTITUTIONAL GUARANTEES IN HONG KONG AT LEAST UP TO 1997, IT COULD ALSO BE PRESENTED AS A CONVERGENCE MEASURE, PASSED TO IMPLEMENT PART OF THE BASIC LAW, TO WHICH THE CHINESE COULD HARDLY OBJECT.

6. GRATEFUL FOR YOUR VIEWS.

HURD

YYYY

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CONFIDENTIAL