TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 133

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conscience and religion goes as far as Article 15 of the BR which includes freedom of thought as well as of conscience and religion. On the other hand the specific provisions of the Basic Law go further than the Bill of Rights in expressly protecting the right of procession, demonstration and strike.

10. Although there can be no doubt that the Bill of Rights is more comprehensive, both as to its positive provisions and as regards permissible limitations, than the specific provisions in Chapter III of the Basic Law, the above analysis does indicate that a sizeable portion of the principles involved (some 14 out of 25) are common to both documents and this might be invoked by those opposed to Hong Kong's initiative in producing a Bill of Rights to support a contention that there is no need to repeat these common principles in local Hong Kong legislation. They could argue that the most that is necessary to give effect to Article 39 of the Basic Law (if indeed anything is necessary since the ICCPR has been applied to Hong Kong since 1976) is:-

(a)

(b)

a residual law setting out those principles which are contained in the ICCPR, but are not specifically set out in the Basic Law (paragraph 8 above); and

a supplementary law implementing and supplementing the principles in such a manner as to give effect, eg, to Articles 14 (3) to (7) of the ICCPR (paragraph 9 above).

Such a provision would not be particularly tidy, but the existence of the Hong Kong Bill of Rights alongside the specific Articles in Chapter III of the Basic Law is also by no means tidy.

11. So far as I can see from the papers which have been sent to me, the Government of Hong Kong has not addressed the question of why it is necessary to repeat all of the ICCPR when specific provisions of Chapter III of the Basic Law make substantial provision to the same effect. (Our reasons for concentrating on Article 39 in discussions with the Chinese on the Basic Law does not provide an answer). The furthest it has gone in rationalising its production of the Bill of Rights appears to be in paragraph 6 of the Commentary on the consultation bill namely that there has been growing support in the community for the idea of a single piece of legislation. Legislation in one piece to implement the ICCPR is a good reason. But the strength of the argument depends on how satisfactory are the other provisions of the law for protecting human rights. What also needs to be brought out

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