TNAG-2175-FCO40-3112-Hong-Kong-Bill-of-Rights-1990 — Page 229

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3 PFAAC

Clause 5(2): Again we commented on this in Item D of telno 1246 and I see no reason to add anything to that.

Clause 6 is troublesome principally because it is by no means clear what is intended by the parenthesis in subsection (1) or by subsection (2). The parenthesis in subsection (1) seems to conflict with the phrase in lines 1 and 2 "proceedings within its jurisdiction" as it might be read as conferring a new jurisdiction to hear actions "for breach of this Ordinance". Subsection (2) would also seem to extend the jurisdiction of courts to entertain initial proceedings relating to the Bill of Rights and not only to

determine issues in proceedings otherwise within the court's jurisdictions if it is asserted that there is a contravention of the Bill of Rights.

I have tried to avoid what I see as the contradictions in this Clause in a redrafted provision set out in Annex A to this minute. Subsection (1) of that Annex is intended to replace subsections (1) and (2) of Clause 6. Subsections (2) and (3) go beyond the present Clause 6 and add provisions, which I have maintained are highly desirable in a measure of this kind, namely the conferment of original jurisdiction on the Supreme Court and the power to refer upwards from subordinate courts important issues arising under the Bill of Rights. It should be noted that this additional provision does not, nor have our previous comments suggested (as paragraph 30 of the ExCo Memorandum implies), that the Supreme Court should have exclusive jurisdiction (paragraphs 14 and 15 of my minute of 10 May). I accept the necessity to empower subordinate courts to deal with Bill of Rights issues but propose that the Supreme Court should have a rather more direct power than the power to hear appeals or to order revisions.

Clause 9: I remain of the view that the reference to "armed forces of the government responsible for foreign affairs" has a colonialist smack to it. I don't think that paragraph 2 of Hong Kong telno 1487 is a particularly convincing reason for maintaining any qualification to the expression "armed forces", but if others think some qualification is required could we not just say "armed forces of the State"?

Clauses 9 and 11: The structure of these Clauses is not exactly clear. In Clauses 10, 12 and 13 we say that particular Articles don't have certain specific

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