TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 153

CONFIDENTIAL

CONFIDENTIAL

FM FCO

TO IMMEDIATE HONG KONG

TELNO 1008

OF 22080OZ MAY 90

HKD24.

23 MAY 1990

INFO PRIORITY UKREP JLG HONG KONG, PEKING

118

142035

MDHOAN 9176

MIPT: BILL OF RIGHTS: THE NATURE OF THE BILL (PART II ARTICLES):

SUGGESTED AMENDMENTS

IN

1. ARTICLE 1(1): AMEND TO READ QUOTE THE RIGHTS RECOGNISED IN

THIS BILL OF RIGHTS ARE HEREBY ACCORDED TO ALL PERSONS WITHIN

HONG KONG WITHOUT DISTINCTION .... UNQUOTE. ARTICLE 2 OF THE COVENANT REQUIRES STATES TO ENSURE RIGHTS WITHOUT DISCRIMINATION WHICH IS MORE THAN AND DIFFERENT FROM QUOTE ENJOYED UNQUOTE. WE NOTE YOUR EARLIER ARGUMENT (YOUR TELNO 63) AGAINST SPECIFYING

THAT ALL RIGHTS ARE TO BE ENJOYED BY EVERYONE IN HONG KONG. OUR VIEW THIS IS NOT A PROBLEM. FIRST, THIS WORDING IS ENTIRELY CONSISTENT WITH ARTICLE 2(1) OF THE COVENANT. SECOND, ARTICLE 1(1) ACCORDS THE RIGHTS RECOGNISED/RECOGNISED IN THE BILL. IN THE CASE OF ARTICLE 22 THE RIGHT RECOGNISED IS THAT OF QUOTE EVERY CITIZEN UNQUOTE, WHICH WILL ADEQUATELY QUALIFY THE MEANING OF ARTICLE 1(1). HOWEVER, IF YOU FEEL STRONGLY, WE WOULD BE CONTENT SIMPLY FOR QUOTE ACCORDED UNQUOTE TO REPLACE QUOTE

ENJOYED UNQUOTE IN YOUR DRAFT.

2. ARTICLE 2(1) DELETE QUOTE THIS RIGHT SHALL BE PROTECTED BY

LAW UNQUOTE. THIS SENTENCE CASTS DOUBT ON THE CHARACTER OF THE

BILL AS SELF-EXECUTING OR DIRECTLY APPLICABLE LAW. THE BILL OF

RIGHTS IS ITSELF THE LAW WHICH THE SENTENCE REQUIRES TO BE ENACTED.

3.

ARTICLE 4(1): REPLACE QUOTE SHALL BE UNQUOTE IN LINE 2 BY

QUOTE ARE UNQUOTE. ALTHOUGH IT IS CORRECT TO DRAFT PROHIBITIONS

AS REGARDS PERSONS IN THE FORM QUOTE NO ONE SHALL BE UNQUOTE (AS IN LINE 1), WHEN USED IN RELATION TO AN INSTITUTION OR STATE OF AFFAIRS IT RAISES THE QUESTION WHETHER THE PARTICULAR INSTRUMENT

EFFECTS THE PROHIBITION OR WHETHER SOME OTHER INSTRUMENT IS

REQUIRED. IN DOMESTIC LAW THEREFORE THE FORMULA QUOTE IS/ARE

PROHIBITED UNQUOTE IS PREFERABLE.

ARTICLE 14(2): THE INCLUSION OF ARTICLE 14(1) INTO A DIRECTLY APPLICABLE LAW EFFECTS THE PURPOSE OF ARTICLE 14(2), WHICH SHOULD

4 -

1

PAGE

CONFIDENTIAL