TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 99

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NUMBER OF COUNTRIES' BILLS OF RIGHTS) WE ARE NOT AWARE THAT IT HAS GIVEN RISE TO A LITIGATION BOOM ELSEWHERE. (DETAILED POINTS ON THE APPLICATION OF A PROVISION OF THIS NATURE ARE CONTAINED IN PARA 16 OF FIFOOT'S MINUTE).

AMENDMENT TO LETTERS PATENT (PARAS 15-16 OF TUR)

8.

WE WERE UNHAPPY WITH THE FORMULA IN YOUR TELNO 966 FOR TWO

REASONS:

A) IT REQUIRES THE LETTERS PATENT TO ENDORSE A PARTICULAR MEASURE OF LOCAL LEGISLATION (THE BILL OF RIGHTS):

B) IT DOES NOT MIRROR ARTICLE 39 OF THE BASIC LAW. THE MORE THE CURRENT ARRANGEMENTS CAN APPROXIMATE TO THE BASIC LAW, THE MORE DIFFICULT IT WOULD BE FOR THE CHINESE TO DISPUTE THEM.

WE SHOULD PREFER TO AMEND THE LETTERS PATENT BY REPLACING ARTICLE VII(2) AS FOLLOWS:

QUOTE (2) WITHOUT PREJUDICE TO THE GENERALITY OF PARAGRAPH (1): -

(A) THE PROVISIONS OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AS APPLIED TO HONG KONG SHALL BE IMPLEMENTED IN HONG KONG THROUGH LAWS: NO LAW OF HONG KONG SHALL RESTRICT THE RIGHTS AND FREEDOMS ENJOYED IN HONG KONG IN A MANNER WHICH IS INCONSISTENT WITH THAT CONVENANT AS APPLIED TO HONG KONG: (B) A LAW OF THE COLONY MAY PROVIDE. (AS IN THE PRESENT ARTICLE VII(2)).

·

THIS DRAFT DELIBERATELY AVOIDS THE AMBIGUITY TO WHICH MARTIN LEE REFERS. WE THINK IT MORE PRUDENT TO SPELL OUT OUR OWN OBLIGATIONS AND WHAT WE INTERPRET ARTICLE 39 OF THE BASIC LAW TO MEAN RATHER THAN REPRODUCE THE BASIC LAW'S AMBIGUITY AND RELY ON POSSIBLE/POSSIBLE LITIGATION BETWEEN NOW AND 1997 TO CLARIFY.

FREEZE PERIOD

9.

WE DO NOT THINK THE PRESENT DRAFT WILL ACHIEVE YOUR PURPOSE. CLAUSE 3(1) AND (2) MERELY AMOUNT TO AN EXPRESS STATEMENT OF THE COMMON LAW DOCTRINE OF IMPLIED REPEAL. THIS WOULD APPLY EVEN IF THERE WERE NO EXPRESS PROVISION. SO ARGUABLY THE PURPORTED SUSPENSION UNDER CLAUSE 1(2) OF CLAUSES 3(1) AND (2) WILL HAVE NO SUBSTANTIVE EFFECT. ONE WAY OF ACHIEVING THE DESIRED EFFECT WOULD BE TO REPLACE CLAUSE 1(2) BY THE FOLLOWING QUOTE NOTHING CONTAINED IN ANY LAW IN FORCE IMMEDIATELY BEFORE THE ENACTMENT OF THIS ORDINANCE SHALL FOR A PERIOD OF TWO YEARS BE HELD TO BE INCONSISTENT WITH ANY OF THE PROVISIONS OF PART II OF THIS

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