TNAG-2177-FCO40-3114-Hong-Kong-Bill-of-Rights-1990 — Page 204

CONFIDENTIAL

CONFIDENTIAL

FM FCO

TO DESKBY 22010OZ HONG KONG

TELNO 1747

OF 21173OZ SEPT 90

HKD241 |

3** 1990

INFO ROUTINE UKREP JLG HONG KONG, PEKING

KONG,

314

(373)

042066 MDHOAN 7531

YOUR TELNO 2827: BILL OF RIGHTS

1.

LEGAL ADVISERS DISCUSSED THE DRAFT IN TUR WITH STOCK AND DYKES THIS AFTERNOON. LEGAL ADVISERS TAKE THE VIEW THAT THE FIRST PARAGRAPH OF THAT DRAFT IS CIRCULAR IN EFFECT AND HAS NO MEANING: AND THEY COULD NOT GUESS WHAT WOULD BE THE RESULT IF THE COURTS TRIED TO GIVE IT A MEANING. THEY HAVE SUGGESTED INSTEA INSERTING A SECOND SUBSECTION IN CLAUSE 1 AS FOLLOWS:

QUOTE THIS ORDINANCE IS ENACTED TO GIVE EFFECT TO THE PROVISIONS OF ARTICLE VII(3) OF THE LETTERS PATENT RELATING TO THE IMPLEMENTATION OF THE ICCPR AS APPLIED TO HONG KONG. UNQUOTE.

THE HEADING TO THE CLAUSE WOULD THEN BECOME QUOTE SHORT TITLE, OBJECT AND COMMENCEMENT UNQUOTE. GRATEFUL FOR COMMENTS DESKBY 2409OOZ.

2.

THE DRAFT IS SIMILAR TO A PREAMBULAR PARAGRAPH BUT IS INCLUDED AS A SUBSTANTIVE PROVISION AND, WHILE STATING THE PURPOSE OF THE ENACTMENT SHOULD GIVE LITTLE HOSTAGE TO THE FUTURE. THE WORDING IS INTENDED TO BE SUFFICIENTLY BLAND TO ACCOMMODATE THE SUBSTITUTION OF ARTICLE 39 OF THE BASIC LAW FOR THE REFERENCE TO ARTICLE VII(3) OF THE LETTERS PATENT AND BOTH TO RECOGNISE THE DEPENDENCY OF THE BOR ON THE LETTERS PATENT, AND IN TURN THE BASIC LAW, AND TO MEET THE

CRITICISM

THAT THE BILL DOES NOT DEAL WITH ALL THE MATTERS REFERRED TO IN ARTICLE 39.

THIS FORMULATION ALSO HAS THE ADDITIONAL ADVANTAGE THAT IT

IS DISTANCED FROM CLAUSE 2(3) OF THE BOR

3.

LIKE YOU, WE PREFER A REFERENCE TO A SPECIFIC ARTICLE IN THE LETTERS PATENT.

4.

WE WILL BE FAXING TO YOU ON MONDAY A DRAFT

1

PAGE CONFIDENTIAL

Redacted under FOI exemption 27(1)|