Clarity required on foreign right of abode

PUBLISHED : Monday, 16 August, 2010, 12:00am
UPDATED : Monday, 16 August, 2010, 12:00am

Does having dual nationality, or a foreign right of abode, undermine a person's commitment to serve in the legislature and act in the best interests of constituents? It is a question that each community has to answer for itself.

In some countries, such as Britain, Canada and the United States, voters decide for themselves whether a candidate with foreign right of abode can still serve in their interests, and there is no automatic disqualification of candidates with dual nationality. On the other hand, limiting the number of members with foreign right of abode, or even an outright ban against legislators with dual nationality, is also not uncommon. The Australian constitution, for example, forbids citizens with foreign nationality to stand for election in both houses of its parliament.

Hong Kong, too, has a view on this. The Basic Law makes room for legislators with foreign right of abode so long as the proportion of such members does not exceed 20 per cent of the legislature. These provisions have been implemented by designating 12 functional constituency seats as allowing foreign right of abode. According to a number of government papers and constitutional experts, this provision is in line with the overall spirit of the Basic Law to allow 'people who are not of Chinese nationality to continue to contribute to Hong Kong, and to help maintain the image of Hong Kong as an international metropolis'. Some may agree with this provision, and others may disagree. But it is what is enshrined in our constitution - and so that raises the question as to why a government that seeks to promote an open and pluralistic society should want to impose even tighter restrictions than is spelled out.

The legislature will be increasing the number of seats from 60 to 70 in 2012 - which means, in theory, that two more seats for legislators with foreign right of abode could open up, while still keeping the 20 per cent cap on such members. But the government wants to maintain the limit at 12 such seats. Last year's consultation paper asked: 'Do you agree that the existing arrangement ... [of] 12 seats should remain unchanged?' But the existing arrangement is based upon a legislature with 'no more than 20 per cent' of foreign nationals; 12 seats is simply the result of figuring out 20 per cent of 60 seats, not a limit spelled out in law. In any case, such a question requires a negative answer to produce positive change, and is one likely to mislead readers. It is true that keeping the limit at 12 - or 17.1 per cent of 70 seats - also falls below the 20 per cent cap and is therefore not in violation of the Basic Law. But then why not just ban all members with foreign right of abode?

A better question to ask is, why add unnecessary restrictions to our Basic Law rights? Reasonable people can disagree on whether allowing people with foreign right of abode to be legislators is a good idea or a bad idea. But that issue has already been debated, and the answer written down in our mini-constitution. If we are to deviate from its provisions, we should have a robust debate on the issue.

Due to its complicated past regarding nationality issues, Hong Kong has decided it should allow a certain proportion of its legislature to maintain foreign right of abode in order to maintain its international character. The designation of seats allowing foreign right of abode can be open to further debate, but unless this government intends to narrow Hong Kong's global outlook, it should send a clear message that it intends to adhere to the full provisions of the Basic Law, and state from the outset that it intends to maintain a maximum proportion of 20 per cent, and not 12 seats.