TNAG-2177-FCO40-3114-Hong-Kong-Bill-of-Rights-1990 — Page 184

Mr Paul, HKD

HKD24

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- 9 OCT 1990

CONFIDENTIAL

Telm

326

From:

Paul Fifoot

Legal Advisers

Date: 4 October 1990

CC Mr McLaren

Mr Burns

Ms Major, HKD

Ms Foakes

Ms Barrett

HUMAN RIGHTS IN HONG KONG: THE BASIC LAW AND THE BILL OF

RIGHTS

1. We spoke the other day about the Bill of Rights (BOR) and the present suggestion to introduce a provision which says expressly that the BOR is subject to the Basic Law. I mentioned, as I have before, my general disquiet about the provisions regarding human rights in Hong Kong. It may be useful to summarise them here as a preface to considering the present suggestion in paragraphs 7 and 8 below.

2. Statute law may be complicated and difficult to understand, but it is the function of the draughtsman to make a draft law as intelligible as his instructions permit so as to give adequate guidance to those who have to administer the law and to the courts who have to apply and interpret it and, so far as is possible, to the ordinary intelligent person who may read it and be affected by it. It should be the function of the Legislator to seek to ensure that the law which he enacts serves the purpose of the enactment with as much clarity as is possible. For both draughtsman and Legislator, it should be an aim to eliminate those ambiguities, obscurities and possible contradictions or inconsistencies which become apparent during the drafting and legislative process. (Neither can do anything about those which may only become apparent after enactment.)

3.

In

Although human rights codes are of their very nature more general in their scope and expression than more ordinary domestic legislation, the human rights provisions which have been made or are proposed for Hong Kong are lacking in clarity, obscure and have substantial inconsistencies. important areas, it is not possible to express a view with any confidence of the course domestic courts may take in interpreting these provisions. The Basic Law contains one general provision (Article 39) designed to give effect in domestic law to the ICCPR, and at the same time makes provisions in Articles 2538 and 40 for specific rights

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CONFIDENTIAL