TNAG-2175-FCO40-3112-Hong-Kong-Bill-of-Rights-1990 — Page 79

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a clause making them subject to the Bill of Rights, the Group considers that, under the circumstances, the "special status so proposed is acceptable.

Implications of the Bill of Rights on Existing Legislation

14.

The Ad Hoc Group notes that, under Clause 3 of the Draft Bill of Rights, the decision on whether an existing enactment is inconsistent with the Bill of Rights would be a matter for the courts: before the Bill is enacted and fully effective there can therefore be no exhaustive or conclusive assessment of the implications of the Bill of Rights on existing legislation. In its examination of the Draft Bill, however, the Ad Hoc Group considered it essential to have some assessment of the extent to which existing legislation might be affected by the Bill: without such an assessment, the Group would have found it difficult to address concerns that the Bill might lead to an unacceptable reduction in the powers of the enforcement agencies. The Group would also have found it difficult to tackle the problem of possible conflicts between the rights guaranteed under the Bill and those that have been conferred by certain existing legislation without this assessment. Moreover, in the course of deliberation, the Group felt such an assessment would assist it when it examined the necessity and nature of the proposed freeze period.

15.

The Ad Hoc Group endorses the Legal Working Group's Report. The revised report at Annex G has incorporated views expressed at several Ad Hoc Group meetings (A list of the Members of the Working Group is also attached to the Annex). The Working Group considers the following issues which are regarded as paramount for deliberation by the Ad Hoc Group:

(a) whether the draft Bill is necessary and/or desirable

in the light of Article 39 of the Basic Law and other articles in Chapter III of the Basic Law;

(b) the compatibility of the draft Bill vis-a-vis the

Joint Declaration and Basic Law;

(c) whether the proposed freeze period of two years is

necessary and/or appropriate;

(d) whether the draft Bill if enacted will be sufficiently

entrenched both before and after 1997;

(e) what is the status of the draft Bill if enacted

vis-a-vis other laws (legislations and common law);

(f) whether it is acceptable to enact the ICCPR only as

domestic legislations and not the ICESCR.

It is therefore not an exhaustive assesssment. The Working Group notes with some disappointment the fact that, fourteen years since ICCPR was first applied to Hong Kong, there still