TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 114

CODE 18-77

Reference

the Covenant indicate that only natural persons are protected by the Convenant; corporations and other legal entities do not have "human rights". This is confirmed by the travaux préparatoires; "individuals" rather than "persons" was used to leave no doubt that the reference was to natural persons only.

4. It follows that at best the reference in Clause 6(1) to "person" is ambiguous; at worst, it could extend the scope of the Bill way beyond that of the Covenant and result in a very much larger volume of B/R litigation. The best solution would be to delete "person" in Clause 6(1) and substitute "individual", in line with Article 2(1) of the Covenant.

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5. Attention also needs to be given to the Chinese text in this regard.

任何人 The expression used in Clause 6 " meaning literally "any person" is very broad and would

normally be understood in a legal context to include legal persons. I suggest it ought to be deleted and replaced by

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14 1 1" which would reflect Article 2(1) of the Chinese text of the ICCPR more accurately. Conversely, the expression used for "person" in Clause 7(2), (1) is, I believe, normally understood to refer to natural persons only whereas Clause 7 is obviously intended to refer to all persons, natural and legal. I wonder whether the Chinese drafters could find an alternative expression using the 'K' but not the 個 ' for this Clause. (I assume

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that the Interpretation and General Clauses Ordinance will have been translated into Chinese, but do not know how "person" has been translated there.)

6. If HKG delete clause 6 altogether and replace it with a new clause based on Section 15 of the Bermuda Constitution Order, as we suggest in the telegram about to be issued, these points will still apply as the expression "any person" also appears there. I do not know whether or how it has been interpreted by the Bermudan courts, but even if companies can bring B/R actions there, in the Hong Kong context where precise adherence to the Covenant is crucial, and where fears are being raised of a litigation boom, the creation of new rights for legal persons should be avoided. Again, the solution would simply be to substitute "individual" for "person" wherever reference is being made to potential plaintiffs.

तप Jay Banett

Jill Barrett

K11ACW