TNAG-2721-FCO40-3927-Hong-Kong-elections-nationality-restrictions-1993 — Page 21

Page

2

4.

According

a distinction is

to relevant international jurisprudence,

discriminatory, or the principle

of

treatment is violated, if the distinction has

and reasonable justification.

UN Human Rights Committee:

Or, in the

not every

of

treatment.

will

constitute

equality of

no objective

words of the

differentiation

discrimination,

are

if the criteria for such differentiation

reasonable and objective and if the aim is to achieve a

purpose which is legitimate under the Covenant." This test

is, of course, extremely difficult to apply in practice and we have no local case law to guide us. However, in the

present case, we would need first to establish that the criteria selected for determining who is to fall within the

20% (non-Chinese nationality or a right of abode in a

foreign country) are objective and ascertainable.

That may

be difficult.

We would then have to establish that the

distinction or restriction is justified, in that it pursues

legitimate aim

and goes no further than is necessary to

The justification would, of course, be

a

pursue that aim.

the need to ensure a smooth passage for the "through

I would be more confident of successfully arguing

train".

this case

in an international rather than a domestic legal

context. I shall explain this later.

I don't.

5.

Plegal position

argument

think it would make any differenceTM Lo thể

whether the 20% restriction was imposed by

certain functional consistency seats in the 1995

elections for "non-Chinese" candidates or,

as has been

suggested, by allocating the seats to be filled by such

reserving

candidates among the various

proportiona]

basis.

Either

making distinctions between

LegCo constituencies on a

arrangement. would involve

candidates who are permanent

residents which would have the effect of restricting the

right of some to be elected.