TNAG-2158-FCO40-3078-Hong-Kong-nationality-package-Chinese-views-1990 — Page 167

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Legal Advisers

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24 January 1990

Mr Gillmore

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Miss Barrett

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Miss M

Miøs Major, HKD

BASIC LAW: LEGISLATURE

1.

NATIONALITY REQUIREMENT FOR MEMBERS OF THE

In my view, 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 be inconsistent with the Joint Declaration.

2.

The only relevant provision in the Joint Declaration is JD 46, vis "the... legislature... shall be composed of local inhabitants". I assume that the purpose of this provision was to ensure that legislators like the "government" 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 Joint Declaration relates. JD 46 is such a provision. It 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