TNAG-2176-FCO40-3113-Hong-Kong-Bill-of-Rights-1990 — Page 4

Deferment of obligations between individuals

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The

White Bill proposed to impose between individuals, through a Bill of Rights for Hong Kong, all obligations contained in the ICCPR. It will be difficult to withdraw completely from that position. The consideration is therefore whether, and if So, how to defer the effect of problematic articles between individuals. It is important to bear in mind in this connection that we are seeking to implement the ICCPR in a comprehensive manner by means of a Bill of Rights. It would therefore require exceptional justification to warrant deferment of the application of any

of its articles.

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The Administration has met representatives of the Hong Kong Chamber of Commerce and the Hong Kong Association of Banks, who have accepted the Adminstration's explanation about the legal effects of the articles in question on the operation of the private sector, but are still very concerned that Articles 16 and 22, as they are worded in broad terms, could be misinterpreted and result in unwarranted and speculative litigation. This will be a nuisance, but no more.

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There

are

no good legal grounds to defer the application of the articles relating to the freedom to receive and impart information (Article 16) and non-discrimination (Article 22) for the reasons given in paragraph 33 of XCC (90) 100. These articles, from a legal point of view, should not lead to successful claims against the private sector. As noted in paragraph 33 of XCC (90) 100, Article 22 of the BOR, if it is interpreted in a manner which is consistent with decisions already made by the UNHRC, will be limited to the content of laws,

laws, and will not itself make discrimination in the private sector unlawful. It is, however, accepted that the concerns of the private sector about Article 14 (the right to privacy) are valid because it would create legally rights and obligations between private

enforceable

individuals.

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On

balance, we recommend that the imposition of obligations between individuals should be deferred in respect There should be no problems with selective

locally

of Article 14 only.

explaining

internationally.

this

deferment

We should at

and same time give a clear

minimise uncertainty among the private

statement publicly on the legal effects of Articles 16 and 22 on individuals to

sector.