Bulletin Number Four 1986

the Joint Declaration should be put in this chapter section by section. Such an approach may seem over simplification. But the Basic Law is concerned w ith matters o f principle. It is inappropriate to legislate in detail. Be that as it may, one or two matters deserve careful consideration. 1. Definition o f Inhabitants A t its second general meeting last April, the Basic Law Drafting Committee approved a skeletion draft for the Basic Law. Chapter 3 o f the draft is devoted to Rights and Duties o f the Hong Kong Inhabitants. Section X IV o f Annex I to the Joint Declaration gives descriptions o f various categories o f inhabitants in Hong Kong. Generally they are:- a) Chinese nationals born in Hong Kong. b) Chinese nationals who have lived in Hong Kong for a continuous period o f seven years or more. c) Persons o f Chinese nationality born outside Hong Kong o f Chinese nationals in either o f the above categories. d) Other persons who have ordinarily resided in Hong Kong for a continuous period o f seven years or more and have taken Hong Kong as their place o f permanent residence and their children under twenty-one years o f age. e) Other persons who had the right o f abode only in Hong Kong prior to the establish ment o f the Hong Kong Special Admin istrative Region. These are clearly persons who w ill have the right o f abode in Hong Kong. Several questions immediately arise. First o f all there are, at present, Chinese nationals who have lived in Hong Kong for seven years or more w ith their spouse and children born in the Chinese mainland. By virtue o f the aforesaid definitions their children are entitled to a right o f abode in Hong Kong after 1st July 1997 ， but not their spouse. I f that is the law, it seems unreasonable and inhumanitarian that children may join their parents while a husband or wife may not be united w ith the spouse. This argument applies equally to spouses of non-Chinese nationals who have lived in Hong Kong for a continuous period o f seven years or more and have taken Hong Kong as their place o f permanent residence. On the grounds o f humanitar ianism, spouses o f these inhabitants should be allowed a right o f abode in Hong Kong. Arising from this is the question o f immigration control. I f spouses and children of persons w ith a right o f abode are allowed a similar right, ahigh degree o f proof must be applied in order to ensure that they are the genuine spouse or children o f a person having a right o f permanent abode. Another problem arises over Section I o f Annex I which stipulates that: ‘The Government and legislature o f the Hong Kong Special Administrative Region shall be composed o f local inhabitants.' No definition has been provided o f the term ‘local inhabitants'. I f all persons who have a permanent right o f abode are regarded as local inhabitants, then d ifficu lty may arise in that Section IV o f Annex I specifically stipulates that British and foreign nationals holding permanent identity cards o f the Hong Kong Special Administrative Region may serve as public servants at all levels except as heads o f major Govern ment departments. This appears to be in conflict w ith Article 7 o f the International Covenant on Economic, Social and Cultural Rights which provides that all workers are to have: 'Equal opportunity for everyone to be pro moted in his employment to an appropriate higher level, subject to no considerations other than those o f seniority and competence.' I f these people are not to be regarded as local inhabitants then they w ill be denied the right to vote or to be candidates to the legislature. In this way we run the risk o f losing the talents amongst the non- Chinese nationals who have roots in Hong Kong and who have made substantial contributions to the financial and industrial sector. 2. International Covenants Section X III o f Annex I stipulates that: 'The provisions o f the International Covenant on Civil and Political Rights and the Inter national Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force.' Because o f this stipulation both Covenants are appli cable subject to certain reservations made for Hong Kong by the U.K. Government which is a signatory to these Covenants. In this connection it is o f interest to observe that the only reservation in respect o f Article 7 o f the latter Covenant is that o f postponement o f the application o f the provision for equal pay to men and women for equal work in the private sector. No reservation has been made to the provision for equal chance o f promotion. To solve this problem, I am o f the opinion that it is not necessary to write into the Basic Law the contents o f Section IV o f Annex I to the effect that British and foreign nationals may not serve as heads o f major departments —if appointments are to remain w ithin the discretion o f the Chief Executive, because he w ill be the person to make recommendations to the People's Congress. The International Covenant in question came into force and was made applicable to Hong Kong upon the U.K. Government becoming one 10 NEWS