CONFIDENTIAL
period, Hong Kong would make the necessary changes to its legislation. The aim is to avoid upheavals if the courts found earlier laws inconsistent with the Bill and a vacuum in law while
adaptation were made. The way in which the Hong Kong draftsmen have tried to achieve this in the Bill is ineffective and we propose an alternative.
Jurisdiction of Courts
16. We propose that Hong Kong should make specific provision for the jurisdiction of the courts in proceedings under the Bill of Rights. The Supreme Court should have an original jurisdiction but it is important that the lower courts should have jurisdiction over some
of the rights in the Bill (eg Article 5 liberty and security of
person, Article 6
persons deprived of their liberty and Article 11
rights of persons charged or convicted of criminal offence). But it is questionable whether the lower courts are adequately qualified to address certain issues eg where it is necessary to balance a
particular right against other legitimate interests recognised by
the Covenant. A procedure should be available for the transfer of
such cases.
International Interpretation
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17. Hong Kong have inserted a Clause that "in interpreting and applying this Ordinance"
regard shall be paid to the international origin of [the] Covenant and the need for uniformity
in interpretation of rights recognised in other international
agreements". In our view, this does no more than spell out what
already takes place in the Courts. We know that the Chinese are
particularly sensitive to international supervision of human rights and this clause is likely to give them cause for complaint.
therefore propose that Hong Kong delete it.
ARPA
A R Paul
We
TOMAVB (7)
CONFIDENTIAL
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