TNAG-2177-FCO40-3114-Hong-Kong-Bill-of-Rights-1990 — Page 198

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- 8 OCT 1990

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061430

MDHIAN 1490

FOR FRANK STOCK AND MICHAEL SUEN (HKG): BILL OF RIGHTS (BOR)

SUMMARY

1. THE SOUTH CHINA MORNING POST (SCMP) TODAY REPORTED PROMINENTLY THE UNFAVOURABLY FINDINGS BY ANTHONY LESTER, LONDON 1C, OF THE EFFECTS OF THE INTER-CITIZEN RIGHTS PROVIDED UNDER THE BOR. LESTER'S STUDY WAS REPORTED TO BE COMMISSIONED BY THE HONG KONG BANK.

DETAIL

2. THE MAJOR PROBLEMS REPORTED BY SCMP APPEAR TO BE AS FOLLOWS:

(A) ATTEMPTS MIGHT BE MADE TO USE THE OBLIGATIONS IMPOSED UPON AN

INDIVIDUAL AS A MEANS OF IMPOSING THE FUNDAMENTAL DUTIES CONTAINED IN THE CHINESE CONSTITUTION ON PRIVATE PERSON OR BODIES

(E.G. A COMMERCIAL BANK MIGHT BE REQUIRED TO DISCLOSE CONFIDENTIAL COMMERCIAL INFORMATION TO THE AUTHORITIES).

(B) ARGUMENTS AGAINST SUCH AN INTERPRETATION OF THE BOR, THOUGH SUPPORTED BY HUMAN RIGHTS CASE LAW, COULD BE OVERRULED BY THE NPC STANDING COMMITTEE, AND AFFECTED INDIVIDUALS WOULD BE BARRED FROM SEEKING HELP FROM THE UN HRC BECAUSE CHINA DID NOT ACCEPT THE

OPTIONAL PROTOCOL TO THE ICCPR.

(C) THE DEFERMENT ONLY OF THE APPLICATION OF RIGHT TO PRIVACY TO THE PRIVATE SECTOR UNTIL SPECIFIC LEGISLATION IS ENACTED IS NOT

ADEQUATE TO DISPEL LEGAL UNCERTAINTIES.

(D) THE SCOPE OF THE BOR ARTICLE ON QUOTE FREEDOM OF EXPRESSION UNQUOTE WOULD BE MUCH WIDER THAN ENVISAGED BECAUSE THE EUROPEAN COURT HAD RECENTLY INTERPRETED QUOTE THE FREEDOM OF OPINION UNQUOTE AS COVERING NOT ONLY IDEAS BUT ALSO INFORMATION OF A COMMERCIAL NATURE. SPECIFIC LAWS WERE NEEDED ON FREEDOM OF EXPRESSION AND THIS RIGHT HAD TO BE RECONCILED WITH THE RIGHT TO PRIVACY. (WE FEEL THAT THE REPORT MIGHT ACTUALLY MEAN ARTICLE

16(2)).

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