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legislation. And a domestic legislator has to take much more account of the need for certainty in the laws than the international legislator, who has to accommodate different legal systems and who, in the field of human rights, must be only too aware of the tendency of international tribunals to a developing interpretation of international instruments. Further, clause 7 of the Bill may well be construed as going beyond the requirements of the ICCPR in that it purports to make the rights and obligations set out in the Bill binding upon private persons as well as governmental authorities even where this may not be the intended effect of the Covenant or accord with the interpretations of the Human Rights Committee.
6.
The
No doubt, one of the main objects of the HKG in producing this Bill was to try to ensure that, so far as the domestic courts of Hong Kong are concerned, Article 39 of the Basic Law and the rights enshrined in the ICCPR would have primacy and prevail notwithstanding that similar rights, but of a less protective character, are also contained in the Basic Law. However, the result of the way they have gone about it is a lack of clarity, obscurity and inconsistency. defects are to a great extent the consequence of the policy of keeping to the very wording of the Covenant in a domestic enactment. They are not the responsibility of the draftsman. The latter are as aware of them as we are and have been no more successful than we were in the early summer in procuring amendments to make the Bill clearer. Nevertheless I see little prospect that the HKG will be prepared (indeed could now contemplate) the kind of change of approach necessary to produce a clearer Bill (though I hope they will be prepared to accept two additions essentially of a procedural nature, and not affecting substance, which I have suggested to Mr Stock). The courts will have to do their best with whatever text of the Bill of Rights eventually emerges, but, because the Bill is drafted the way it is, this will not be a simple task, and could well, for instance, involve them in interpreting the same or comparable words in one way when they appear in one article and in a different way when they appear in another article!
7.
The suggestion has now been made that, in order to obtain Chinese acceptance of the BOR, we should include in the Bill a provision that it is "subject to the Basic Law". This only adds to the obscurity. Of course, the BOR will be subject to the Basic Law in the sense that if it is not consistent with the Basic Law it may not, having regard to the provisions of the first paragraph of Article 160 of the Basic Law, survive 1997, or may be struck down later for the same reason. But that sense does not exhaust the possible meaning of a
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