TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 119

L See Klassy FRG: E Court

to follow them would be consistent with Hong Kong's expressed object for enacting a BoR, ie that provision should be made for fundamental rights in a single measure. That does not mean that it is necessary or desirable to establish a new tort. Hong Kong would be well advised to follow the Bermuda precedent if it wishes to include recourse against third parties.

(e) Letters Patent: We were aware of the ambiguity and our draft avoids it.

National Security

3. The expression "national security" appears to be used as the third in an ascending scale "public order", "public safety" and "national security"

and to embrace a serious threat or potential threat to the peace and order of the state or to the public authorities of the state (including subordinate state

authorities or serious disorder having that effect

.

So long as the threat, or the necessary degree of disorder or destablisation, exists, it is not necessary

& HR, 6 Septemby that it should manifest itself throughout the state at

the same time. Appropriate and proportionate measures 1974

taken for the protection of the state against acts of treason, sedition or subvertion, or against terrorism, are "necessary to protect national security", and they are no less necessary measures because the relevant threat is only present or manifest in part of the state at any particular time.

4. Threats to national security may therefore exist in the SAR, both as regards the rest of China and the Central Authorities and as regards the SAR and its authorities. To put it at its highest, a conspiracy

in the SAR to destabilise

the Central Authorities is a matter of national security. In the SAR, unless Article 18 of the BL applies, the only authority with power to legislate against such acts which threaten national security is the Legislature of the Region. The SAR is required by Article 23 of the BL to legislate in respect of treason, sedition, etc. (and that is an answer to the argument of OMELCO quoted in paragraph 4 of TUR). It is intended that the courts of the SAR will try offences under such legislation. The

'executive authorities" of the SAR will, presumably, take the necessary practical steps to investigate and, if necessary, frustrate acts which seek to threaten the security and stability of the Central Authorities. If challenged as to the compatibility with the BOR of such steps taken by the SAR authorities, the latter must be able to rely on the defence of national security. Hong Kong security is not enough. incidentally this must be the answer to any expression of Chinese concerns about references in the BOR to national security; the measure of autonomy conferred on the SAR, particularly Article 23, makes such a reference imperative.

And

2