TNAG-2325-FCO40-3369-Hong-Kong-Bill-of-Rights-policy-1991 — Page 64

CONFIDENTIAL

FM FCO

TO IMMEDIATE HONG KONG

TELNO 963

OF 201415Z MAY 91

CONFIDENTIAL

HKC241/5

INFO ROUTINE PEKING, UKREP JLG HONG KONG

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MDHOAN 385

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YOUR TELNO 1498: BILL OF RIGHTS: NEW CLAUSE 7

fe Amails.

1 WITH REFERENCE TO PARAGRAPH 2 OF TUR, IN THE VIEW OF OUR LEGAL ADVISERS, AS FAR AS INTERNATIONAL LAW IS CONCERNED, ''THE STATE''

INCLUDES JUDICIAL BODIES.

"

2. THE RESPONSIBILITY OF THE STATE WOULD BE DIRECTLY ENGAGED UNDER THE ICCPR IF A COURT FAILED TO ACCORD AN INDIVIDUAL RIGHTS TO WHICH HE IS ENTITLED UNDER, FOR EXAMPLE, ARTICLES 14 OR 15. IT IS THEREFORE IMPORTANT THAT THE BILL OF RIGHTS BINDS JUDICIAL BODIES NOT ONLY IN THE SENSE THAT THEY ARE BOUND TO APPLY THE

BILL OF RIGHTS IN DECIDING CASES WHERE VIOLATIONS BY EXECUTIVE OR OTHER PUBLIC BODIES ARE AT ISSUE, BUT ALSO IN THE SENSE THAT THE COURTS THEMSELVES MUST COMPLY WITH THE PROVISIONS WHICH ARE RELEVANT TO THE JUDICIAL PROCESS (EG ARTICLES 10, 11 AND 12). THERE MIGHT BE CASES OF VIOLATIONS OF SUCH RIGHTS WHERE THE COURTS ARE THE DIRECT AND ONLY VIOLATERS AND NO EXECUTIVE OR OTHER BODIES ARE INVOLVED. IT MATTERS THEREFORE THAT ''PUBLIC AUTHORITIES' WOULD BE INTERPRETED BY THE COURTS AS INCLUDING THEMSELVES. THE DOLPHIN DELIVERY CASE DOES NOT SEEM TO BE

EXACTLY IN POINT.

3. WE SHOULD BE GRATEFUL TO KNOW WHETHER THE EXPRESSION

''PUBLIC AUTHORITY HAS BEEN USED IN OTHER LEGISLATION IN HONG KONG AND, IF SO, HOW IT HAS BEEN INTERPRETED BY THE COURTS.

HURD

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.HONG KONG AGREEMENT

.(RESTRICTED)

LIMITED

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CONFIDENTIAL