CONFIDENTIAL
115322
MDHOAN 1840
THERE IS LIKELY TO BE A CONFLICT BETWEEN DIFFERENT LAWS, COURTS SUBORDINATE TO THE HIGH COURT MAY NOT BE THE APPROPRIATE FORA AND THERE WOULD THEREFORE BE ADVANTAGE FOR REFERENCES TO BE MADE TO THE HIGH COURT FROM A SUBORDINATE COURT IN SUCH CASES. IT DOES NOT APPEAR TO US THAT THE SUGGESTIONS WE MADE IN PARAGRAPH 11 OF OUR TELNO 1043 ARE INCONSISTENT WITH YOUR VIEWS. (F) OBLIGATIONS OF INDIVIDUALS: THE NEW CLAUSE 7(3) IS, AMONGST OTHER THINGS, AN UNATTRACTIVELY STARK PROVISION AND MORE LIKE YOUR OPTION (B) NOTWITHSTANDING CLAUSE 7(4). IT IS LIKELY TO
ATTRACT UNFAVOURABLE COMMENT. WE WILL STUDY IT FURTHER.
(G) ARTICLE 17 AND CLAUSE 13: WE CERTAINLY PREFER TO SEE ARTICLE 17(1) AND CLAUSE 13 DELETED. IS IT NECESSARY ALSO TO DELETE ARTICLE 17(2)? THIS HAS A PURPOSE SEPARATE FROM ARTICLE 17(1).
(H) PARAGRAPHS 42 AND 43: GOOD.
(I) PARAGRAPH 44 (PRECEDING 2 WORDS UNDERLINED): IT IS NOT CLEAR WHAT YOU INTEND TO DO. DOES IT PERMIT MAINLANDERS, EG. IF RESIDENT IN HONG KONG, TO BENEFIT FROM THIS PROVISION?
(J) NEW TERRITORY POLICIES: THERE IS, WE BELIEVE, A REAL CHANCE OF A CONFLICT BETWEEN ARTICLE 39 AND 40 OF THE BASIC LAW AND THEREFORE BETWEEN THE BILL OF RIGHTS AND ARTICLE 40 OF THE BASIC LAW. WE ARE NOT CONVINCED BY THE ARGUMENT IN PARAGRAPH 54 OF THE MEMORANDUM, BUT THINK IT EQUALLY POSSIBLE THAT THE COURTS WOULD CONSIDER ARTICLE 40 OF THE BASIC LAW AS A LEX SPECIALIS WHICH WOULD BE AN EXCEPTION TO ANY ANTI-DISCRIMINATION PROVISION OF THE BILL OF RIGHTS. SUCH UNCERTAINTY IS NOT HELPFUL.
(K) LETTERS PATENT (PARAGRAPH 68 AND PARA 2 OF YOUR TELNO 2050): WE AGREE TO POSTPONE SUBMISSION TO THE PRIVY COUNCIL. WE WOULD STILL LIKE TO SUBMIT AMENDMENTS CONCERNING THE BILL OF RIGHTS
TOGETHER WITH THOSE CONCERNING CONSTITUTIONAL DEVELOPMENT. IF YOU SEE NO DIFFICULTY, WE WILL POSTPONE BOTH UNTIL THE AUTUMN.
(L) ADDITIONAL PROVISION: ARTICLE 1(1): WE REMAIN OF THE VIEW
THAT ARTICLE 1(1) SHOULD BE NORMATIVE AND WE DO NOT THINK THAT THERE IS SUBSTANCE IN THE NATURAL LAW ARGUMENT IN PARAGRAPH 2(1) OF YOUR TELNO 2031. YOUR PREFERRED SUBSTITUTION OF QUOTE SHALL BE UNQUOTE WOULD BE ACCEPTABLE SINCE THIS IS A NORMATIVE
PROVISION.
(M) CHINA DIMENSION: WE CONSIDER PARAGRAPH 72 OVER OPTIMISTIC.
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