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eleciton.
This again would presumably be a challenge on the basis that the election ordinance was invalid for failure to comply with the Basic Law requirement. Such a challenge could again be met with the (conclusive) argument that the Basic Law will not be in force in Hong Kong until 1 July 1997. Indeed, even if a challenge were made after, not before, 1 July 1997 in respect of acts done between the 1995 elections and 1 July 1997 by a LegCo elected under an ordinance for the 1995 elections which did not meet the nationality requirements of the Basic Law, that challenge still ought not to succeed (however see paragraph 3 below).
3.
I have now seen the Hong Government paper on a possible court challenge. It provides further reassurance. I would add that any electoral laws enacted after 1 July 1997 would have to comply with the nationality requirement or risk being struck down (Articles 11 and 17 of the Basic Law). There is also the possible risk that if a challenge were made after 1 July 1997, Article 158 of the Basic Law, might be abused (and it would be a flagrant abuse) so as to strike out acts done by members of a LegCo elected in 1995 which was not in conformity with the nationality requirement. Article 158 ought not to be applicable since Hong Kong elections will be within the SAR's autonomy. But I can see that a twisted argument might be made to the effect that the 1995 elections ought to have complied with the nationality requirement in the Basic Law, and as the Basic Law is a constitutional matter concerning the relationship of the SAR and the PRC, the relevant provisions ought to be referred to the Standing Committee of the PRC. This might then give an unhelpful interpretation of the law which would result in the challenge being upheld, perhaps in respect of acts done between 1995 and 1 July 1997 but,more likely, those done after 1997 by the members elected to the 1995 LegCo. This is rather a far fetched possibility but not inconceivable, even though it would involve legally incorrect arguments including that the Basic Law Law had effect on laws enacted before 1 July 1997. It might also be decided that Basic Law Articles 11 and 17 were applicable to law (such as the 1995 election ordinance) surviving the transition (assuming the ordinance does so survive).
4.
Mr Cox also would like legal advice on the Election Committee (EC) speaking note with particular reference to paragraphs 4 to 8. Two separate notes on this subject have in fact been attached. I have very few comments on the paper on the principle of election to the EC ("New British Preconditions") except perhaps that I find paragraph 4 a little disingenuous. It states that one of the principles agreed with the Chinese side on the EC is that the EC should be as representative as possible (ie be as broadly based as possible). This is not at all the same thing as having fair and open elections, yet the next sentence goes on to ask
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