TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 130

CONFIDENTIAL

Most of these provisions are capable of being applied directly as law (and are not dependent for their enforcement on implementing laws); though they might have to be supplemented by other laws. If the Chinese were to assert

that they are intended to be directly applicable, we would not wish to contradict them.

In any event the last word would lie with the courts of the SAR.

4. As regards the respective beneficiaries of the rights, the Hong Kong Bill of Rights, following the ICCPR, confers rights on "everyone" or provides that "no-one" shall be prejudiced. The specific provisions of the Articles in Chapter III of the Basic Law, however, refer to "Hong Kong residents". (I exclude those Articles which are intended to confer political rights where citizenship or a permanent degree of residence is properly called for, as it is in the ICCPR.) Nevertheless, by Article 41 of the Basic Law provision is made that persons in the SAR "other than" (which means "in addition to") Hong Kong residents, shall, in accordance with law, enjoy the rights set out in the chapter. This is capable of meaning that persons other than Hong Kong residents enjoy the rights that are set out in Chapter III in terms of Hong Kong residents unless a law specifically deprives them of those rights.

5.

It is arguable, and it is difficult to gainsay, therefore, that insofar as specific rights are set out in Chapter III of the Basic Law they are directly applicable law and they apply to all persons in Hong Kong unless a specific law has qualified those rights in relation to non-residents.

6.

I turn now to consider the extent to which these specific rights overlap the rights which are proposed to be enacted in the Hong Kong Bill of Rights. To assist in this task, I made a comparison in an annex to this minute; the left-hand column sets out the provisions of the Hong Kong Bill of Rights; the right-hand column sets out quotations from the corresponding specific provisions in Chapter III (and, also, though they are not in Chapter III, Articles 21 and 87). I have highlighted in the left-hand column those provisions which repeat, or substantially repeat, specific provisions of Chapter III and have underlined those provisions which deal broadly with the same matters.

So far as principles are concerned, there is an overlap with regard to the following rights:-

7.

Right to life: Article 2 BR (Bill of Rights); Article 28 BL (Basic Law).

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CONFIDENTIAL