HKB 011/7
SECRET
RECE
ISTRY
12
1993
PA
REGISTRY Action Taken: :
From :
pa. (99)
Elections
Miss Shelagh Brooks
Legal Counsellor
Date :
11 August 1993
Ms Saunders
HKD WH306
HONG KONG: TALKS ON 1994/95 ELECTIONS
1.
Nigel Cox has asked for legal advice on the Through Train and the Election Committee speaking notes. In his letter at paragraph 4, Mr Cox explains that he has tried to imply in the first draft speaking note that Article 67 of the Basic Law deals with qualifications for membership of LegCo rather than its composition. My reading of Article 67 of the Basic Law is that the second sentence in part deals with qualifications for membership and in part deals with composition of LegCo. The first part which provides that permanent residents of the HKSAR who are not Chinese or who have the right of abode in foreigh countries may also be elected LegCo members is setting out a qualification for membership. The second part of the sentence however introduces a proviso which reads "that the proportion of such members does not exceed 20% of the total membership of LegCo". This clearly is dealing with the composition of LegCo. Having said that, I think that Mr Cox's approach in paragraph 8 is probably the best way of fudging the matter and as he points out, any Chinese challenge would lead us naturally into questioning them about how they would seek to test and apply the criterion in 1997.
2.
Mr Cox also wonders to what extent the nationality issue might be challenged in Hong Kong courts. The hypothesis is that someone might challenge an act of LegCo by claiming that LegCo was unlawfully constituted in the 1995 elections because no 20% restriction on the election of expatriates was imposed in those elections. The challenge would presumably have to take the line that the election law for the 1995 elections was invalid because it did not conform with the requirements of the Basic Law on nationality (Basic Law, Article 67). However, given that the Basic Law will not come into operation until 1 July 1997, I cannot see how the challenge could succeed. Until the Basic Law comes into operation there will be no 20% restriction and the election ordinance for the 1995 elections would not therefore be incompatible before 1 July 1997 with the Basic Law requirement. The election ordinance would itself be validly enacted, and acts done by LegCo members would not be ultra vires the ordinance. It is, of course, open to someone to mount a challenge and there is no guarantee that, perhaps inspired by the Chinese, a challenge might not be mounted but this is a separate question from whether it would succeed. challenge might also take another form. The election ordinance might be challenged by a disappointed potential candidate for
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