TNAG-2176-FCO40-3113-Hong-Kong-Bill-of-Rights-1990 — Page 174

CONFIDENTIAL

150660 MDHIAN 8927

.

BEFORE 1997. THERE ARE ALSO PROBLEMS WITH USING QUOTE PERSONS WITH THE RIGHT OF ABODE IN HONG KONG UNQUOTE ALONE, AS TO DO SO WOULD BE A DEPARTURE FROM THE TEXT OF THE ICCPR: ALLOW THE EXPANSION OR REDUCTION OF SUCH CATEGORIES OF PERSONS MERELY THROUGH AMENDMENTS TO THE IMMIGRATION ORDINANCE: AND COULD BE PERCEIVED AS A REDUCTION

IN THE PROTECTION OF THE RIGHTS OF BRITISH CITIZENS IN HONG KONG. ON THE OTHER HAND THERE IS AN ODDITY IN SUING THE TERM 'CITIZEN WHICH WILL CHANGE ITS MEANING IN 1997 AND WOULD THEN PARTICULARLY ENCOMPASS ANY CHINESE CITIZEN TEMPORARILY RESIDENT IN THE HONG KONG SAR. ON BALANCE, WE HAVE RECOMMENDED THAT ARTICLE 21 SHOULD BE EXPANDED TO COVER ALL PERSONS WITH THE RIGHT OF ABODE IN HONG KONG, AS WELL AS CITIZENS, BUT THE ARGUMENTS WILL NEED TO BE LOOKED AT CAREFULLY IN EXCO.

(E) NT POLICIES: TO KEEP TO THE RECOMMENDATION IN THE EXCO MEMORANDUM CONSIDERED BY EXCO ON 10 JULY. WE WOULD ALSO POINT OUT TO EXCO THAT WHEN THE ICCPR WAS APPLIED IN HK IN 1976, HMG AND HKG CONSIDERED THAT ALL ITS LAWS, INCLUDING THOSE RELATING TO THE NT, WERE IN CONFORMITY WITH THAT COVENANT AND THAT BOTH GOVERNMENTS HELD THE SAME VIEW IN 1984 IN THE CONTEXT OF JD 156, 204 AND 205. IF THE COURTS OR THE UNHCR SHOULD RULE THAT OUR NT POLICIES WERE INCONSISTENT WITH THE BOR OR ICCPR, APPROPRIATE ACTION WILL THEN HAVE TO BE TAKEN.

3. WE SHOULD BE GRATEFUL IF YOU WOULD CONFIRM OUR UNDERSTANDING OF

HMG'S POSITION OUTLINED IN THE SECOND SENTENCE OF (E) ABOVE DESKBY

17010OZ. IT WOULD BE A USEFUL POINT TO MAKE WHEN INTRODUCING THE

BILL IN LEGCO.

WILSON

YYYY

DISTRIBUTION

69

ΜΑΙΝ

58

.HONG KONG AGREEMENT

.(RESTRICTED)

LIMITED

HKD

HD/FED

RAD (FE)

3

PAGE

PUSD

NEWS D

PS/MR MAUDE

PS/LORD BRABAZON

MR MCLAREN

MR BURNS

2

ADDITIONAL

MR WHOMERSLEY LEGAL ADVISERS

MS BARRETT LEGAL ADVISERS

MR FIFOOT LEGAL ADV.

NNNN

CONFIDENTIAL