Page
2
4.
According
a distinction is
to relevant international jurisprudence,
discriminatory, or the principle
of
treatment is violated, if the distinction has
and reasonable justification.
UN Human Rights Committee:
Or, in the
not every
of
treatment.
will
constitute
equality of
no objective
words of the
differentiation
discrimination,
are
if the criteria for such differentiation
reasonable and objective and if the aim is to achieve a
purpose which is legitimate under the Covenant." This test
is, of course, extremely difficult to apply in practice and we have no local case law to guide us. However, in the
present case, we would need first to establish that the criteria selected for determining who is to fall within the
20% (non-Chinese nationality or a right of abode in a
foreign country) are objective and ascertainable.
That may
be difficult.
We would then have to establish that the
distinction or restriction is justified, in that it pursues
legitimate aim
and goes no further than is necessary to
The justification would, of course, be
a
pursue that aim.
the need to ensure a smooth passage for the "through
I would be more confident of successfully arguing
train".
this case
in an international rather than a domestic legal
context. I shall explain this later.
I don't.
5.
Plegal position
argument
think it would make any differenceTM Lo thể
whether the 20% restriction was imposed by
certain functional consistency seats in the 1995
elections for "non-Chinese" candidates or,
as has been
suggested, by allocating the seats to be filled by such
reserving
candidates among the various
proportiona]
basis.
Either
making distinctions between
LegCo constituencies on a
arrangement. would involve
candidates who are permanent
residents which would have the effect of restricting the
right of some to be elected.