TNAG-2177-FCO40-3114-Hong-Kong-Bill-of-Rights-1990 — Page 172

CONFIDENTIAL

11

17

MDLOAN

287

KONG ORDINANCE AT THIS STAGE.

AT SOME POINT WE WILL HAVE TO

MAKE ORDINANCES THAT REFER TO THE BASIC LAW IN ORDER TO ENSURE A SMOOTH TRANSFER WITH APPROPRIATE TRANSITIONAL PROVISION. WE HAD NOT ENVISAGED THAT THAT WOULD BE NECESSARY FOR SOME YEARS. WHAT WOULD BE THE EFFECT ON THE PUBLIC OF SUCH A REFERENCE, ALBEIT SUSPENDED, AT THIS STAGE? ·

THE THIRD, AND PROBABLY MOST IMPORTANT, IS WHAT DOES SUCH A PROVISION MEAN QUERY. THE BILL WILL INDEED BE SUBJECT TO THE BASIC LAW, IN THE SENSE THAT FOR IT TO SURVIVE 1997 IT MUST BE CONSISTENT WITH THE BASIC LAW. BUT IF THE COURTS HAVE TO INTERPRET THE PHRASE, MUST THEY COME TO THE CONCLUSION THAT, BECAUSE OF THE PREAMBLE TO THE BILL OF RIGHTS AND CLAUSE 2(3), QUOTE SUBJECT TO THE BASIC LAW UNQUOTE IS ONLY A WAY OF SAYING SUBJECT TO AND PURSUANT TO ARTICLE 39? IS THERE NOT A DANGER THAT THEY WILL FEEL OBLIGED TO CONSIDER, AND GIVE EFFECT TO, QUESTIONS OF CONSISTENCY WITH THE REMAINING ARTICLES OF CHAPTER III AND ARTICLE 23 OF THE BASIC LAW? AND IF THEY DO, THERE NOT A DANGER THAT THE POLITICAL OBJECT OF THE BILL OF RIGHTS IN SEEKING TO GIVE PRIMACY TO ARTICLE 39 AND THE ICCPR WILL BE UNDERMINED? WHATEVER PRIMACY MAY BE ACCORDED TO INTERNATIONAL LEGAL OBLIGATIONS TODAY, THE COURTS IN 1997 WILL BE CONSTRUING THE BILL OF RIGHTS IN CIRCUMSTANCES IN WHICH IT IS UNLIKELY THAT THE CHINESE WILL HAVE ACCEDED TO THE ICCPR AND WHEN THE ONLY RELEVANT INTERNATIONAL OBLIGATION IS LIKELY TO BE THE BILATERAL JD (IE JD 156).

5.

IS

WE HAVE CONSIDERED POSSIBLE FORMULATIONS WHICH MIGHT

MINIMISE THE DIFFICULTIES OUTLINED ABOVE. WE HAVE COME UP WITH

THREE ALTERNATIVES:

QUOTE

THIS ORDINANCE IS

(1)

ENACTED, IN ACCORDANCE WITH THE COPEN SQUARE BRACKETS) LEGISLATIVE (CLOSE SQUARE BRACKETS) POWER CONFERRED BY THE

BL, FOR THE PURPOSE OF GIVING EFFECT TO ARTICLE 39 IN RESPECT OF THE ICCPR

(2) ENACTED, SUBJECT TO THE POWER CONFERRED BY/CONTAINED IN THE BL TO GIVE EFFECT TO ARTICLE 39 IN RESPECT OF THE

ICCPR

2

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