TNAG-2324-FCO40-3368-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 57

CONFIDENTIAL

FM HONG KONG

TO DESKBY 021000Z FCO

TELNO 996

OF 02094OZ APRIL 91

CONFIDENTIAL

HKC.241/4

41

040534

MDHIAN 0258

for 314

Kus Mayer

17 APR 1991

TOP COPY Q DIST?

Pa

PERSONAL FOR COX, HKD FROM__GOVERNOR.

40

YOUR TELEGRAM NO. 596: VIETNAMESE MIGRANTS: IMMIGRATION

ORDINANCE.

1. I UNDERSTAND THAT MINISTER'S CONCERN THAT ANY AMENDMENTS TO THE IMMIGRATION ORDINANCE SHOULD BE DEFENSIBLE AS NOT BEING IN BREACH OF THE ICCPR. NATURALLY, THIS IS A CONCERN I SHARE. INDEED, IT IS HARD TO SEE HOW I COULD ASSENT TO AMENDED LEGALISATION, OR MINISTERS NOT USE THEIR POWERS TO DISALLOW, IF WHAT WAS PROPOSED WAS IN BREACH OF THE ICCPR. THAT IS ONE SIDE OF

THE ISSUE.

2. THE OTHER SIDE IS A PRACTICAL NEED TO GET ON WITH THE AMENDMENTS. IN A RECENT COURT CASE THE JUDGE COMMENTED UNFAVOURABLE ON PRESENT PERIODS OF DETENTION. WE KNOW THAT THE NEW YORK BASED HUMAN RIGHTS LAWYERS GROUP, LED BY ARTHUR HELTON, INTEND TO MOUNT A LEGAL CHALLENGE TO OUR DETENTION POLICY. I HARDLY NEED POINT TO THE CATASTROPHIC CONSEQUENCES OF A COURT RULING THAT PRESENT LENGTHS OF DETENTION, EITHER BEFORE OR AFTER SCREENING, ARE UNLAWFUL. WE MUST GUARD AGAINST THIS.

3. ON TIMING, THE OBJECTIVE IS NOT TO GET IN BEFORE THE ENACTMENT OF THE BILL OF RIGHTS BUT TO PUT MORE WATERTIGHT LEGISLATION IN PLACE BEFORE THE EXISTING LAW IS CHALLENGED. IN ADDITION TO TRYING TO DEAL WITH THE LENGTH OF DETENTION, WE NEED TO BE AWARE OF THE POSSIBILITY OF LEGAL CHALLENGE TO ABILITY TO TRANSFER DETAINEES. THE JUDICIAL REVIEW OF A RELEVANT CASE STARTS AGAIN ON 7 APRIL.

4. OUR LAWYERS HERE BELIEVE THAT THE AMENDMENTS PROPOSED REDUCE THE LIKELIHOOD OF A SUCCESSFUL CHALLENGE ON DETENTION OR TRANSFER. ALSO THAT THEY ARE NOT IN BREACH OF OUR OBLIGATIONS UNDER THE ICCPR. IF THE FCO LEGAL ADVISERS HAVE DOUBTS ON EITHER POINT, WE MUST RESOLVE THEM QUICKLY. I SHOULD BE GRATEFUL FOR A READOUT OF THEIR DISCUSSION IN LONDON WITH THE HONG KONG EXPERTS. IF THERE ARE POINTS STILL OUTSTANDING, THEN THE QUICKER WE DEAL

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