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MDHIAN 3556
ORDINANCE, SOME PERMANENT RESIDENTS ARE DEFINED BY REFERENCE TO THEIR RACIAL STATUS.
5. THE PROBLEM IN PARAGRAPH 4 ABOVE IS NOT CONFINED JUST TO ELECTORAL LAWS AND WE WOULD DEPLOY LEGAL ARGUMENTS BASED ON ARTICLE 1(4) OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION TO JUSTIFY OUR POSITION.
6. OUR IMMEDIATE CONCERN. IS THE COMPATIBILITY OF FUNCTIONAL CONSTITUENCIES WITH THE ICCPR AND THE BOR. WE TAKE THE VIEW THAT IF FUNCTIONAL CONSTITUENCIES AND PLURAL VOTING ARE COMPATIBLE WITH THE ICCPR AS APPLIED TO HONG KONG THEN THE COURTS IN HONG KONG MAY FIND THEM TO BE COMPATIBLE WITH THE BOR.
7. LEGAL ADVICE HERE IS THAT THE RESERVATION TO ARTICLE 25(B)
EXCLUDES THE OBLIGATION TO ESTABLISH AN ELECTED LEGISLATIVE COUNCIL BY ''UNIVERSAL AND EQUAL SUFFRAGE''. THIS MEANS THAT WE
CAN HAVE AN ELECTION SYSTEM WHICH FEATURES PLURAL VOTING AND FUNCTIONAL CONSTITUENCIES AND NOT BE ACTING INCONSISTENTLY WITH
THE INTERNATIONAL OBLIGATION.
8. WE ALSO THINK THAT THERE MAY BE SOME MILEAGE IN THE ARGUMENT THAT THE U.K.'S INTERPRETATIVE DECLARATION RELATING TO ARTICLE 1 OF THE ICCPR (SELF-DETERMINATION) LIMITS ICCPR OBLIGATIONS IN THE
LIGHT OF THE UN CHARTER WHICH SPECIFICALLY CONTEMPLATED IN
ARTICLE 73 THE PROGRESSIVE DEVELOPMENT OF FREE POLITICAL
INSTITUTIONS IN NON-SELF GOVERNING TERRITORIES ACCORDING TO THE PARTICULAR CIRCUMSTANCES OF EACH TERRITORY. THE SYSTEM OF
REPRESENTATIVE GOVERNMENT IN HONG KONG HAS INVOLVED HAVING REGARD
TO THE UNIQUE CIRCUMSTANCES OF HONG KONG AND HAS BEEN BASED ON
EXTENSIVE CONSULTATION WITH THE LOCAL POPULATION AT EACH STAGE OF ITS DEVELOPMENT. IN THIS CONTEXT, FUNCTIONAL CONSTITUENCIES ARE MEANT TO BE AN INTERIM ARRANGEMENT TO REPLACE THE TRADITIONAL SYSTEM OF CONSTITUTING THE LEGISLATIVE COUNCIL BE APPOINTMENTS BY THE GOVERNOR. IN THE LONGER TERM, ARTICLE 68 OF THE BASIC LAW PROVIDES THAT THE ULTIMATE AIM IS THE ELECTION OF ALL THE MEMBERS OF THE LEGISLATIVE COUNCIL BY UNIVERSAL SUFFRAGE.
9. THUS FROM THE POINT OF VIEWS OF OUR INTERNATIONAL LEGAL OBLIGATIONS WE TAKE THE VIEW THAT THE TEMPORARY NATURE OF FUNCTIONAL CONSTITUENCIES CAN BE REPRESENTED AS AN ELEMENT OF PROGRESSIVE DEVELOPMENT OF THE TERRITORY'S POLITICAL SYSTEM AND THEREFORE NOT INCONSISTENT WITH OUR INTERNATIONAL OBLIGATIONS.
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