TNAG-2175-FCO40-3112-Hong-Kong-Bill-of-Rights-1990 — Page 235

CONFIDENTIAL

3

Basic Consideration

禨密

7.

On the basis of

previous

submissions to this

Council, Members have accepted that it is essential that the Bill of Rights is consistent with the Basic Law so that

it can continue to be in force after 1997. The only way to avoid giving the Chinese legitimate grounds on which to

denounce the Bill as inconsistent with the BL is to make

its substance fully consistent with the ICCPR as applied to

Hong Kong which by virtue of JD 156 and Article 39 of the

Basic Law will remain in force and be implemented in the

laws of the SAR; and to take care that procedural clauses

within the Bill run

risk of conflicting with the Basic

This remains the basic consideration in the

Law.

-

preparation of the draft Bill at Annex A.

8.

A number of DB members and submissions expressed disappointment about the lack of supreme status of the Bill over all local laws and the absence of any direct mechanism

to entrench the Bill.

9.

The question of supremacy and entrenchment was thoroughly discussed by this Council in its earlier consideration of the White Bill. The Council has accepted that, mainly for political reasons, it is impracticable for a Hong Kong Bill of Rights to be given supreme status over

all local laws and be directly entrenched either constitutionally or by special procedural devices, in view of the basic consideration set out in paragraph above.

Instead the Council advised that the Letters Patent should

be amended along the lines of Article 39 of the Basic Law so as to entrench the ICCPR as applied to Hong Kong, and hence the Bill of Rights indirectly. In this connection we note that the LegCo Ad Hoc Group has accepted that the Bill of Rights be indirectly entrenched by amending the Letters

CONFIDENTIAL 機密