TNAG-2325-FCO40-3369-Hong-Kong-Bill-of-Rights-policy-1991 — Page 62

CONFIDENTIAL

Ms Barrett (timed)

eye

52

061613

MDHIAN 8202

CONFIDENTIAL

FM HONG KONG

TO IMMEDIATE FCO

TELNO 1644

OF 240832Z MAY 91

RMS.

2815.

INFO ROUTINE PEKING, UKREP JLG HONG KONG

Si

YRTELNO 963: BILL OF RIGHTS: NEW CLAUSE 7

TOP COPY Q DIST?

HKC241/5

79 MAY 199

1. AS WE UNDERSTAND IT, YOU ARE NOT/NOT SUGGESTING THAT CLAUSE 7 OF THE BILL SHOULD FOLLOWING WORD UNDERLINED EXPRESSLY REFER TO THE COURTS AS BEING BOUND BY THE BOR. WE BELIEVE THE COURTS ARE ALREADY BOUND TO APPLY THE BOR IN THE EXERCISE OF THEIR JUDICIAL FUNCTIONS (THIS WOULD INCLUDE THE VARIOUS PROCEDURAL GUARANTEES) AND CLAUSE 7 IN ITS PRESENT FORM PROBABLY APPLIES TO THE COURTS WHEN EXERCISING ADMINISTRATIVE FUNCTIONS. ANY EXPRESS REFERENCE IS THEREFORE UNNECESSARY.

2. AN EXPRESS REFERENCE MAY ALSO BE UNDESIRABLE BECAUSE:

(A) IN THE LIGHT OF EXPERIENCE UNDER THE CANADIAN CHARTER IT MIGHT RAISE DOUBTS AS TO WHETHER CLAUSE 7 IS EFFECTIVE TO ENSURE THAT THE BOR CANNOT BE RELIED ON IN SUITS BETWEEN PRIVATE INDIVIDUALS TO INVALIDATE COMMON LAW RULES,

(B) IT MIGHT ABOLISH THE DOCTRINE OF JUDICIAL IMMUNITY FROM SUIT FOR JUDICIAL ACTS, AND

(C) IT MIGHT BE VIEWED AS AN ENCROACHMENT ON THE INDEPENDENCE OF THE COURTS.

3. PARA. 2 OF TUR. 'PUBLIC AUTHORITY' HAS BEEN USED IN THE FOLLOWING HONG KONG LEGISLATION:

EVIDENCE ORDINANCE (CAP. 8), S.54

SALE OF GOODS ORDINANCE (CAP. 26), S.2

TRUSTEE ORDINANCE (CAP. 29), SCHEDULE 2 PART II, ITEM 4

INSURANCE COMPANIES ORDINANCE (CAP. 41), SCHEDULE 3

CONTROL OF EXEMPTION CLAUSE ORDINANCE (CAP. 71), S.2

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CONFIDENTIAL