TNAG-2553-FCO40-3728-Hong-Kong-Bill-of-Rights-review-of-legislation-1992 — Page 110

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MDHOAN 7877

STATUS OVER THE BASIC LAW. ON THE CONTRARY, THE BASIC LAW WOULD BE SUPERIOR TO THE BOR:

(II) THE BOR'S STATUS VIS-A-VIS OTHER LAWS IN HONG KONG. THE CHINESE WORRIED THAT THE BOR WAS BEING GIVEN A SPECIAL OR SUPERIOR STATUS OVER HONG KONG LAWS. WE EXPLAINED REPEATEDLY THAT THIS WAS NOT THE CASE. CHINESE CONCERNS CENTRED ON CLAUSE 4 OF THE BILL, WHICH WE AMENDED TO READ 'ALL LEGISLATION AFTER THE COMMENCEMENT DATE SHALL, TO THE EXTENT THAT IT ADMITS OF SUCH A CONSTRUCTION, BE CONSTRUED SO AS TO BE CONSISTENT WITH THIS ORDINANCE.' THE PURPOSE OF THIS CLAUSE WAS TO ENCOURAGE THE COURTS TO FIND WAYS OF INTERPRETING LEGISLATION WHICH WOULD BE CONSISTENT WITH THE INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS (ICCPR), IE TO AVOID LEGISLATION BEING DECLARED INVALID:

(III) THAT THE BOR WOULD ENTAIL WHOLESALE CHANGES IN HONG KONG'S EXISTING LAWS TO ENSURE CONSISTENCY. THIS WAS UNFOUNDED:

ONLY LIMITED CHANGES ARE REQUIRED.

5. THE BOR AS ENACTED INCLUDED A PROVISION FOR A 'FREEZE PERIOD', DESIGNED TO AVOID THE DESTABILISING EFFECTS OF A POSSIBLE LEGISLATIVE VACUUM IF ANY EXISTING LAWS WERE FOUND TO BE INVALID. DURING THIS PERIOD, SIX ORDINANCES WHICH CONTAINED PROVISIONS POSSIBLY INCONSISTENT WITH THE BILL OF RIGHTS WERE TO BE REVIEWED, AND IF NECESSARY AMENDED.

6.

THIS REVIEW IS NOW WELL ADVANCED AND SWIFT LEGISLATIVE ACTION IS BECOMING NECESSARY. HKG HAVE IDENTIFIED THREE OPTIONS FOR DEALING WITH THE CHINESE REGARDING THE AMENDING ORDINANCES

WHICH WILL BE NECESSARY:

(A) CONSULTING THE CHINESE IN ADVANCE: THIS IS THE SAFEST OPTION IN TERMS OF OUR RELATIONS WITH THE CHINESE AND CONSISTENT WITH WHAT WE SAID TO THEM WHEN TRYING TO WIN THEIR SUPPORT FOR THE DRAFT BOR. BUT BECAUSE OF CHINESE OPPOSITION TO THE BOR, THEY WOULD ALMOST CERTAINLY FEEL OBLIGED TO OPPOSE THE AMENDMENTS.

IN ANY CASE THE PACE OF CONSULTATION IN THE JLG IS SUCH THAT AT LEAST SOME OF THE AMENDING BILLS COULD PROBABLY NOT BE INTRODUCED INTO LEGCO BEFORE THE EXPIRY OF THE FREEZE. (INDEED IT WOULD BE IN CHINA'S INTERESTS TO DRAG OUT THE CONSULTATION PROCEDURE.)

(B) INFORMAL BRIEFING: UKREP JLG OR HKG COULD INFORM THE CHINESE OF THE PROPOSED AMENDMENTS SHORTLY BEFORE PRODUCTION: BUT THE

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