Kayfi
CONFIDENTIAL
FAX:
From:
To:
D M Edwards (at FCO)
Mr C M Leung
Date:
22 December 1992
Dear CM,
N
Via
Concer
27/12
FUNCTIONAL CONSTITUENCIES ETC
1.
Thank you for your message of 18 December. I have read Ian Deane's Opinion of 17 December carefully. As I understand it, his view is that legislation to permit people who are qualified to register in both geographical and functions constituencies to opt for registration in one or the other (or in the case of some functional constituencies permit registration only in the functional constituency) may be incompatible with Article 25 (b) of the ICCPR as applied to Hong
Kong.
2. I do not disagree generally with Ian Deane's analysis of the effect for Hong Kong of the provisions of Article 25(b) of the Covenant as applied to Hong Kong and as affected by section 13 of the BOR. But I do, with respect, have a problem with the conclusion that he has drawn.
3. Article 25(b) of the ICCPR gives citizens a right and opportunity to vote in elections. It does not require the citizen to exercise the right to vote (indeed he may decide to exercise his right not to vote). Thus, a provision in legislation requiring a citizen to choose between different kinds of vote (in order to meet the entirely reasonable objective of avoiding double voting) seems to me to be entirely consistent with Article 25(b). It is not as though citizens were to be deprived of their right to vote; they would merely be required to make a choice as to what kind of vote they wished to cast.
4.
Specifically, with respect, I do not agree with Ian Deane's conclusion at the tope of page 5 of his Opinion that:
"Any move to make the geographical constituency elections something less than elections by universal and equal suffrage, by excluding, for example, functional constituency voters, would be prima facie inconsistent with Article 25 (b). There would then be no LegCo elections based on universal and equal suffrage.
The point is that each vote cast within each kind of constituency must be of equal value with the other votes cast in the same constituency. The proposed legislation would not affect that situation. It would merely require citizens to
CONFIDENTIAL