TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 205

CONFIDENTIAL

FM FCO

TO IMMEDIATE HONG KONG

TELNO 1980

OF 251055Z OCTOBER 90

(96

CONFIDENTIAL

HKB 012 16

000236 MDHOAN 0018

0 : NC: 1990

TOP COPY Q DIST?

YOUR TELNO 3052: INTERPRETATION OF THE ROYAL INSTRUCTIONS ON THE TERM ELECTION

1

1.

WE HAVE TAKEN LEGAL ADVICE ON THE QUESTIONS RAISED IN TUR AND IT SUPPORTS THE VIEWS IN YOUR PARAGRAPH 3. THE EXPRESSION ''AN ELECTION FOR ALL THE ELECTED MEMBERS' WAS ADOPTED IN CLAUSES XIIA AND XXVIIIA BECAUSE 'GENERAL ELECTION'' DID NOT SEEM SUITABLE WHERE A LARGE PROPORTION OF THE LEGISLATURE WAS APPOINTED. IT WAS RECOGNISED, HOWEVER, THAT SUCH A ''GENERAL ELECTION'' WOULD NOT NECESSARILY TAKE PLACE IN EVERY CONSTITUENCY ON THE SAME DAY AND, THEREFORE, WHEN IT WAS NECESSARY TO BE SPECIFIC AS TO TIMING, AS IN THE PROVISO TO CLAUSE XXVIII(A) (2), REFERENCE WAS MADE TO THAT POSSIBILITY AND THE RELEVANT TIME FIXED AS THE FIRST OF THE DAYS ON WHICH A GENERAL ELECTION TAKES PLACE. THAT PROVISO MAKES IT CLEAR THAT THERE IS NOTHING TO PREVENT A PARTICULAR GENERAL ELECTION TAKING

PLACE OVER MORE THAN ONE DAY.

2.

WE SEE NO DIFFICULTY ABOUT AMENDING THE PROVISO TO CLAUSE XXVIIIA (1) BUT WE QUESTION WHETHER THE AMENDMENT NEEDS TO DEPART FROM THE CONCEPT SET OUT IN THE PROVISO TO PARAGRAPH 2 OF THAT CLAUSE, IE THE FIRST DAY APPOINTED FOR SUCH ELECTIONS. ΤΟ PRESERVE THAT APPROACH WOULD UNDERLINE THE CORRECTNESS OF THE INTERPRETATION IN PARAGRAPH 3 OF TUR. WE THEREFORE SUGGEST THE FOLLOWING ALTERNATIVE TO THE WORDING OF THE AMENDED PROVISO IN PARAGRAPH 6 OF TUR:

''PROVIDED THAT THE LEGISLATIVE COUNCIL SHALL STAND DISSOLVED IN THE FOURTH YEAR AFTER THE LATEST ELECTION FOR ALL THE ELECTED MEMBERS OF THE LEGISLATIVE COUNCIL ON SUCH DATE AS THE GOVERNOR SHALL FIX BEING A DATE NOT EARLIER THAN 60 DAYS AND NOT LATER THAN 30 DAYS BEFORE THE ANNIVERSARY OF THAT ELECTION (OR IF THE ELECTION WAS HELD ON MORE THAN ONE DAY, THE FIRST DAY OF THAT ELECTION)''.

HURD

PAGE 1 CONFIDENTIAL