CONFIDENTIAL
Other Suggestions of an absence of Consistency
7.
Various suggestions have been made that certain other provisions of the BL are not consistent with the JD. The Attorney-General's attention should be drawn to the following:
(a)
Article 22: The final paragraph of this article provides that "People from other parts of China must apply for approval for entry into the [HKSAR]". The relevant provision of the JD is "Entry into the HKSAR of persons from other parts of China shall continue to be regulated in accordance with the present practice". There is no conflict on the face of it between these two provisions, but our exploration with the Chinese of the reason for the failure to include a reference to the present practice, under which there is an informal but genuine agreement between HK and the mainland authorities, has given rise to apprehensions that the HKSAR will not have a say in entry from the mainland. Accordingly, although we would not propose to mark this as a case of inconsistency, it is considered that a formal statement should be included to the effect that the present practice, and hence the JD, requires that the HKSAR should be a party to the system of approval.
(b) Articles 55, 70 and 89, nationality provisions: It has been argued that the requirements in these articles that Executive Councillors, the President of the Legislative Council and the two senior Judges be Chinese citizens conflict with the JD. The corresponding provision cited from the JD is JD74 which provides for non-Chinese serving in the public service. It is therefore of no relevance to members of the Executive or Legislative Councils; nor in our view is it relevant to judges who are dealt with separately at JD64. The latter provision states that judges may be recruited from other common law jurisdictions, but such a provision would not seem to require that anyone so recruited must be entitled to aspire to the office of Chief Justice or Chief Judge of the High Court.
Under Article 100, foreigners may also be excluded from appointment as Commissioner Against Corruption or Director of Audit. These are public service appointments and thus fall under JD74; and there is an argument that, based on present staffing equivalences in HK, they are not within the categories specified in JD74. We have been very reluctant to take this point with the Chinese on the grounds that it might be misconstrued as seeking to retain British subjects in these posts; but, apart from that, there is room for a difference of opinion whether, objectively, such office holders, who will hold statutory offices under the BL (see Articles 57 and 58), are the equivalent of Secretary rank offices. Our inclination is not to raise this issue.
(c) Article 157: This Article is as follows:
"The power of interpretation of this Law shall be vested in
CONFIDENTIAL
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