TNAG-2175-FCO40-3112-Hong-Kong-Bill-of-Rights-1990 — Page 144

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CONFIDERIAL

M.5

EXECUTIVE COUNCIL DECISION ON 23.1.90

HONG KONG BILL OF RIGHTS : XCC (90)9

COMMENTARY

50

entrenchment

*

-

(a) There was a widespread public misconception that Government had considered and rejected the option of entrenchment for the Bill of Rights; in fact the option of absolute had never really existed. Whilst hurdles could be placed in the way of future legislatures amending or repealing the Bill with undue haste, for example by requiring attenuated amendment or exceptional majorities,” there could be no absolute entrenchment without enshrinement in a higher constitutional document; in Hong Kong's case,

C.for-

political

reasons,..

this

was

unacceptable. The aim was therefore to enact a Bill of Rights that would endure beyond 1997. **

· (b)

A

(c)

(d)

→

a political

degree. of entrenchment, in rather than legal

sense, was provided by basing Part II of the Bill on the ICCPR, itself entrenched through Article 39 of the Basic Law. Although this would not prevent amendment or repeal, it would ensure that the SARG could not enact legislation that conflicted with Part II of the Bill without contravening the Joint Declaration.

opinion

Bill of

the Bill

that new

conflict

The requirement for the Attorney General to certify

legislation did not in his with the provisions of the Rights, the interpretation clause in and the practice of making future legislation subject to the Bill, whilst not making it supreme, would make it politically difficult

introduce legislation that conflicted with the Bill and would confer an aura of special status on it.

to

The retention of the phrase "the life of the nation" in clause 5(1), whilst ensuring that there Would be no conflict with the Pasic Law, had the added advantage of ensuring that basic human rights could not lim suspended in the event of localized turmoil, affecting only Hong Kong.

CONFIDENTIAL