TNAG-2158-FCO40-3078-Hong-Kong-nationality-package-Chinese-views-1990 — Page 154

CONFIDENTIAL

HKC3401

10/1

RECEIVED IN/REGISTRY

12 FEB 1990

DESK OFFICER INDEX.

PA

REGISTRY

Action Taken

CONFIDENTIAL

FM FCO

TO IMMEDIATE HONG KONG

TELNO 241

OF 261845Z JANUARY 90

INFO IMMEDIATE PEKING, UKREP JLG HONG KONG

کچھ

35

057200

MDHOAN 1942

MIPT: 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.

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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

IT

INCAPACITY.) IT, ALSO, IS SILENT ON WHETHER THERE MAY BE ANY OTHER POSSIBLE QUALIFICATIONS FOR ELECTION, AND THEREFORE DOES NOT EXCLUDE THAT POSSIBILITY.

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