TNAG-2175-FCO40-3112-Hong-Kong-Bill-of-Rights-1990 — Page 263

CONFIDENTIAL

-

28

機密

62.

In

summary,

we consider the BOR faithfully implements the provisions of the ICCPR. Those provisions have not been authoritatively interpreted in the case of landholding, and it is therefore not certain whether there is any conflict between the BOR and current customary law (including that which is reflected in current HK legislation).

63.

In the light of the position stated above the two main policy options appear to be -

(a)

We take the initiative to amend legislation which may be inconsistent with ICCPR now and to convince the Chinese that such amendments

are desirable, in order to remove any possible challenge under the BOR, and that such amendments will be consistent with the

JD and BL.

(b)

We should take no initiative, and leave the law as it is until such time as a competent body may authoritatively rule that our law is inconsistent with the Covenant and/or the BOR. The UN Committee on Human Rights (for the ICCPR) and the courts (for the BOR) would be competent bodies.

If (b) is adopted, local feminist bodies are likely to test our NT policies in court upon the enactment of the BOR. If an adverse finding is reached (as is quite likely), we will have to amend our NT policy and probably the NT ordinance accordingly. We will then tell the Chinese why we are making the amendments and if

necessary draw on the arguments in the paragraphs above.

CONFIDENTIAL

機密

28