TNAG-2175-FCO40-3112-Hong-Kong-Bill-of-Rights-1990 — Page 227

CONFIDENTIAL

further alternative would be to limit the new subsection in the same way as Clause 7(3) is limited, ie to party and party rights.

6. However, although the concentration of the exceptions in one clause might look better and perhaps make it a little easier for HKG spokesmen to argue the necessity for the exceptions, it does not disguise the fact that the Bill itself shows that Hong Kong is not ready for the Bill, and I would not expect it to avoid the kind of criticism that HKG anticipate in the passage from paragraph 39 of the Memorandum quoted above.

7. Another general point that I should make is that the Memorandum to ExCo gives prominence to the argument that the authority for deciding whether local laws are consistent with the Bill is the Judiciary and not the Administration or the Legislature. The argument starts in paragraph 12, where it is cited as the "commonly held view" and is picked up in paragraph 51 in the context of defining "Citizen" for the purposes of the public rights Article and in paragraphs 56-62 in the consideration of the effect of the Bill of Rights in relation to the rights of the inhabitants of the New Territories. It is the case that in the last resort the compatibility of various laws with the Bill of Rights is a matter for the courts. However, that does not mean that an Administration which proposes legislation can in effect throw a Bill at the Legislature and say the courts must work out what it means. The Administration must have a view, and be prepared to express a view as to what they are asking the Legislature to enact. This is the case whether the legislation in question is the consequence of its own thinking or whether it is the consequence of a decision to implement an international instrument. HKG must be prepared to form and to express a view as to what it thinks the effect of the word "citizenship" is in relation to Article 21 and what it thinks the effect of Article 23 will be in relation to the rights of the inhabitants of the New Territories. In particular so far as the latter is concerned, it would be irresponsible in an Administration not to have a clear view and a policy about the possible effect of the ICCPR on the law of inheritance affecting a part of its population and to leave them in the dark about that until a court may give a relevant decision.

(In this connection it must be borne in mind that consistency with the Joint Declaration is only one issue. Consistency with Article 40 of the Basic Law is equally significant more so perhaps because of the Chinese assertions that the Bill of Rights seeks to prevail over the Basic Law. The last sentence of paragraph 65 of the Memorandum is not particularly appropriate The issue is not "giving in" but

3 PFAAC

CONFIDENTIAL