TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 169

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interpretation of rights under the Covenant; this can only be so because the common law rules of interpretation allow it. It is also clear that common law courts may use as persuasive authorities decisions from international tribunals (see the references to a decision of the European Court of Human Rights in the spycatcher cases: [1987] 1WLR 1248 and (1988) 3 All ER 545). In view of the attitude of the Chinese to the "internationalisation" of Hong Kong's institutions this unnecessary provision should be omitted.

9. I think paragraph (a) of sub-section 2 (3) is a point that needs to be made. However, although it does deal with the interpretation of the Bill of Rights by the courts, I think it is too important to be tucked away in an "interpretation" clause. It should form a clause on its own in Part I of the Bill.

10.

Clause 2(4) and (5) Notwithstanding the reference to "interpreted" in sub-section (4), I do not think that either of these sub-sections are strictly interpretation provisions. They should certainly not form part of something called an interpretion clause. They are substantive provisions and should be included in clause 8 as part of the Bill of Rights itself.

11. Clause 5 This is a dangerous clause since "Government" in subsection (2) (a) can only mean (or at least include) the sovereign Government and to refer to the sovereign Government could cause the Chinese to treat the clause (and perhaps the Ordinance as a whole) as seeking to bind the Central Authorities on matters outside the autonomy of the SAR, as inconsistent with the extent of the SAR's autonomy and thus a candidate for termination under Article 160 of the Basic Law. Two of the possible ways of dealing with the issue are:-

(a)

(b)

to omit the clause and any reference whatsoever to Article 4 of the Covenant on the grounds that (i) it is not directly applicable law - it relates to a qualified power of the Legislature or Executive and (ii) it is not a provision that is "in force", or will be in force, in Hong Kong unless a public emergency is proclaimed;

or

to include in clause 4 (1) of the Bill a reference to a provision consistent with Article 4 of the Covenant. The reference could consist of a second sentence: "During any state of emergency which has been officially proclaimed the provisions of this sub-section shall have effect subject to any measure which conforms with the conditions specified in paragraph (2) of Article 4 of the International Covenant on Civil and Political Rights".

1PFABM

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