CONFIDENTIAL
Analysis by FCO Legal Advisers
Annex A
BASIC LAW : LEGAL VIEW ON NATIONALITY REQUIREMENT FOR MEMBERS OF THE LEGISLATURE
1.
IT IS THE VIEW OF LEGAL ADVISERS THAT, -SO LONG AS IT IS -AN ESSENTIAL QUALIFICATION FOR A MEMBER OF THE LEGISLATURE THAT HE SHALL--HAVE-A. GENUINE-- CONNECTION-WITH- HONG._KONG, ANY FURTHER. REQUIREMENT SUCH AS HE SHOULD POSSESS CHINESE NATIONALITY, OR NOT POSSESS ANY OTHER NATIONALITY, OR THAT HE SHOULD NOT HAVE A PARTICULAR FOREIGN IMMIGRATION STATUS, WOULD NOT/NOT BE INCONSISTENT WITH THE JOINT DECLARATION.
2.
THE ONLY RELEVANT PROVISION IN THE JOINT DECLARATION IS JD 46, VIZ QUOTE THE... LEGISLATURE.. SHALL BE COMPOSED OF LOCAL INHABITANTS UNQUOTE. IT IS ASSUMED THAT THE PURPOSE OF THIS PROVISION WAS TO ENSURE THAT LEGISLATORS OF THE SAR WILL HAVE A GENUINE LOCAL CONNECTION WITH. HONG KONG AND WILL NOT BE PEOPLE SENT FROM PEKING OR ELSEWHERE ON THE MAINLAND. HOWEVER, SO LONG AS THAT CONDITION IS FULFILLED, IT DOES NOT FOLLOW THAT THE JOINT DECLARATION EXCLUDES THE ADDITION OF OTHER QUALIFICATIONS FOR LEGISLATORS. THE JOINT DECLARATION IS A VERY UNEVEN DOCUMENT. IN SOME PLACES IT IS COMPREHENSIVE AND PRESCRIBES WHAT MAY BE DONE AND WHAT MAY NOT BE DONE EG JD 81 AND 82. IN OTHER PLACES IT MAY BE GENERAL OR FOCUS ONLY ON PARTICULAR ASPECTS OF AN ISSUE, LEAVING THE DRAFTSMEN OF THE BASIC LAW ROOM TO MAKE EXPRESS CONCRETE PROVISION WITHIN THE SCOPE OF THE GENERAL PROVISION, TO FILL IN GAPS, OR TO MAKE APPROPRIATE PROVISIONS SO LONG AS THEY SATISFY THE PARTICULAR ASPECT TO WHICH THE JD RELATES. JD 46 IS SUCH A PROVISION. FOCUSES ONLY ON THE ASPECT OF LOCAL CONNECTION AND LEAVES THE DRAFTSMEN FREE TO DETERMINE WHAT IS THE PRECISE LOCAL CONNECTION WHICH SHOULD SATISFY THAT REQUIREMENT. (IN THE FEBRUARY 1989 TEXT, ARTICLE 26 MAKES IT CLEAR THAT PERMANENT RESIDENCE IS THE CHOSEN REQUIREMENT THOUGH EVEN IN THIS ARTICLE THE DRAFTSMEN ENABLE THE SAR LEGISLATURE TO INSERT FURTHER QUALIFICATIONS ON ELIGIBILITY TO BE ELECTED TO THE SAR LEGISLATURE EG ABSENCE OF INCAPACITY. IT, ALSO, IS SILENT ON WHETHER THERE MAY BE ANY OTHER POSSIBLE QUALIFICATIONS FOR ELECTION, AND THEREFORE DOES: NOT EXCLUDE THAT POSSIBILITY.)
3.
IT
:
:
AS TO THE SPECIFIC QUALIFICATIONS PROPOSED, BOTH NATIONALITY AND THE ABSENCE OF A RIGHT OF ABODE IN A THIRD COUNTRY ARE FACTORS WHICH COULD BE REASONABLY ARGUED TO BE RELEVANT TO THE GENUINENESS OF A LOCAL CONNECTION. A NATIONALITY REQUIREMENT IS NOT UNUSUAL IN NATIONAL LEGISLATURES AND A RIGHT OF ABODE IN A THIRD COUNTRY RAISES SIMILAR QUESTIONS. THE PROPOSED QUALIFICATIONS ARE NOT IN THEMSELVES UNREASONABLE.
4.
OUR LEGAL ADVISERS CONCLUDE, THEREFORE, THAT A NATIONALITY RESTRICTION ON THE WHOLE LEGISLATURE IS NOT CONTRARY TO THE JD. IF FOLLOWS, THEREFORE, THAT THE CURRENT PROPOSAL TO LIMIT TO 15 PERCENT THOSE MEMBERS OF THE LEGISLATURE WHO MAY HAVE THE ADDITIONAL QUALITIES OF A DIFFERENT NATIONALITY OR A RIGHT OF
CONFIDENTIAL
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