TNAG-1991-FCO40-2831-Future-of-Hong-Kong-British-Nationality-(Hong-Kong)-Selectio-1990 — Page 24

CONFIDENTIAL

FM HONG KONG

TO IMMEDIATE FCO

TELNO 4079

OF 120756Z DECEMBER 89

CONFIDENTIAL

HKBO12

RECEIVED IN REGISTRY

- 4 JAN 1990

DESK OFFICER

PA

REGISTRY

Action Taken

INFO PRIORITY PEKING, UKREP JEG HONG KONG

UKREF

fim

개

(356)

110412

MDHIAN 8737

TOP COPY Q DIST ?

PW 340/18

BASIC LAW: NATIONALITY REQUIREMENT FOR LEGCO MEMBERS

1. EXCO MEMBERS HAVE ASKED WHETHER IT WOULD BE A CONTRAVENTION OF THE JD IF THE CHINESE WERE TO IMPOSE A CHINESE NATIONALITY REQUIREMENT FOR LEGCO MEMBERSHIP IN THE BASIC LAW. WE WOULD BE GRATEFUL FOR YOUR VIEWS BEFORE WE GIVE A REPLY.

2. IT HAS BEEN ARGUED IN EXCO THAT THE ONLY RESTRICTION IN THE JD CONCERNING NATIONALITY IS THAT BRITISH AND OTHER FOREIGN NATIONALS CANNOT SERVE AS HEADS OF MAJOR GOVERNMENT DEPARTMENTS OR AS DEPUTY HEADS IN SOME OF THOSE DEPARTMENTS (JD 74). EXCO ALSO RECALLED THAT DURING THE NEGOTIATIONS, THEY STRESSED THE IMPORTANCE OF AS FEW POSTS AS POSSIBLE IN THE PUBLIC SERVICE TO BE RESTRICTED TO CHINESE NATIONALS AND OF THE JUDICIARY AND LEGISLATURE REMAINING OPEN TO ALL NATIONALITIES.

3. OUR VIEW IS THAT ANY NATIONALITY RESTRICTION ON THE MEMBERSHIP OF THE LEGISLATURE IS CLEARLY A GLOSS ON JD 46. WE DO NOT THINK, HOWEVER, THAT WE CAN ARGUE ON THE BASIS THAT SILENCE AS TO ANY NATIONALITY REQUIREMENT IN JD 46 INDICATES THAT THE JD PRECLUDES SUCH A REQUIREMENT. CLEARLY JD 46 CANNOT BE READ AS IF IT STATED COMPREHENSIVELY THE QUALIFICATIONS FOR MEMBERSHIP OF THE GOVERNMENT AND THE LEGISLATURE. FIRST, THERE ARE DISQUALIFICATIONS FOR MEMBERSHIP WHICH WILL HAVE TO BE ACCEPTED EVEN THOUGH JD 46 MAKES NO ALLOWANCE FOR THEM. MINORS OR THE MENTALLY INCAPACITATED ARE OBVIOUS EXAMPLES. SECONDLY JD ITSELF (JD 74) RESTRICTS THE VERY BROAD TERMS OF JD 46. IT IS THEREFORE VERY DIFFICULT TO ARGUE THAT A NATIONALITY REQUIREMENT FOR MEMBERS OF THE LEGISLATURE WOULD BE A CLEAR BREACH OF JD 46.

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4. ON THE OTHER HAND IT IS ONE OF THE UNDERLYING PRINCIPLES OF THE JD THAT CURRENT SYSTEMS WILL BE MAINTAINED, AND THE PRESENT SYSTEM MAKES NO PROVISION FOR NATIONALITY RESTRICTIONS ON LEGCO MEMBERSHIP. FURTHER, IT CAN BE ARGUED THAT IF THE JD HAD INTENDED THERE TO BE A NATIONALITY REQUIREMENT, IT WOULD HAVE SO PROVIDED, AS IT HAS DONE IN THE CASE OF SOME PRINCIPAL OFFICIALS.

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