FACV No. 12 of 2016

IpsofactoJ.com: International Cases [2017] Part 7 Case 6 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

C.K. Kwok

- vs -

Secretay for Constitutional

and Mainland Affairs

CHIEF JUSTICE GEOFFREY MA

JUSTICE R.A.V. RIBEIRO PJ

JUSTICE ROBERT TANG PH

JUSTICE JOSEPH FOK PJ

JUSTICE ROBERT FRENCH NPJ

11 JULY 2017


Judgment

Chief Justice Ma

A. INTRODUCTION

  1. The present appeal requires the Court to determine the constitutionality of a legislative provision which affects the right to stand for election (also called the right to participate in public life) contained in Article 26 of the Basic Law and Article 21 of the Hong Kong Bill of Rights. The relevant legislative provision is s 39(2A) of the Legislative Council Ordinance (“the LCO”).[1] Broadly speaking, to address the issue before us, the particular point of principle for consideration can be distilled into the following: where considerable political debate and controversy have given rise to a measure (in the present case, a statutory provision) and that measure is said to be unconstitutional, what is the correct legal approach in dealing with the issue of constitutionality and what limits should the court observe to avoid being drawn into a political debate? The determination of constitutionality is of course at all times a legal question for the courts to answer, having regard to the importance of constitutional rights.

  2. A.1 The relevant statutory provision and the constitutional provisions

  3. The LCO deals with numerous aspects in relation to the Legislative Council, Hong Kong’s legislature under the Basic Law, chief among them the facet of elections to that Council. Part 6 of the Ordinance deals with the conduct of elections and within that (in s 39) there are provisions setting out disqualifications from nomination as a candidate or from being elected as a member of the Legislative Council. Among the disqualification provisions is the one under challenge in relation to by‑elections, s 39(2A):-

  4. (2A)

    A person is also disqualified from being nominated as a candidate at a by‑election if—

    (a)

    within the 6 months ending on the date of the by-election—

    (i)

    the person’s resignation under section 14 as a Member took effect; or

    (ii)

    the person was taken under section 13(3) to have resigned from office as a Member; and

    (b)

    no general election was held after the relevant notice of resignation or notice of non-acceptance took effect.

    The effect of this provision is to prevent a member of the Legislative Council who has resigned from standing for election at the by‑election consequent on that member’s resignation. The 6‑month period is intended to cover that by‑election. As the provision makes clear, however, this bar does not apply in the case of a general election. It is confined to by‑elections.

  5. The challenge is based on Article 26 of the Basic Law and Article 21 of the Bill of Rights:-

    1. Article 26 of the Basic Law states:-

    2. Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law.

    3. Article 21 of the Bill of Rights states:-

    4. Right to participate in public life

      Every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions—

      (a)

      to take part in the conduct of public affairs, directly or through freely chosen representatives;

      (b)

      to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

      (c)

      to have access, on general terms of equality, to public service in Hong Kong.

  6. A.2 The parties’ positions in brief

  7. The parties’ respective positions can conveniently be summarised at this point:-

    1. The applicant (in the judicial review proceedings leading to the appeal in this Court)[2] submits that the right to stand for election is an important constitutional right not only for persons wishing to stand for election but also for the electorate. Voters ought to be given the widest possible choice of candidate. Accordingly, the importance of the right should not be lightly interfered with. In the present instance, s 39(2A) goes too far and does not satisfy the proportionality test.[3]

    2. The respondent[4] contends on the other hand that all aspects of the proportionality test are satisfied. The provision in question satisfies all four facets of the test. In particular, it is submitted that s 39(2A) was the result of extensive public consultation, and also considerable discussion by the Government and by the Legislative Council itself before it was enacted. The provision had political origins and was the product of a political judgment and assessment. Accordingly, the courts should accord what has been called a wide margin of appreciation to the Legislature in the application of the legal principles in the present case.

  8. A.3 Background facts

  9. It is now convenient to go into the facts in some detail in order to underline the political origins of s 39(2A).

  10. In July 2009, a political party (The League of Social Democrats) (“the LSD”) raised the proposal that one member from each of the five geographical constituencies within the Legislative Council[5] should resign in order to trigger by‑elections in such constituencies in which the five resigning members would stand. The intention of the LSD was a political one: the by‑elections would be a de facto referendum in relation to the political manifesto of the LSD pressing for universal suffrage and the abolition of functional constituencies.

  11. There was much political controversy caused by this proposal but the LSD and another political party, the Civic Party, adopted it.

  12. On 9 December 2009, there was defeated in the Legislative Council a motion that all members returned in the five geographical constituencies should resign to promote the said referendum. However, on 25 January 2010, one member from each of the five constituencies[6] did resign with effect from 29 January. The result of these five resignations was to trigger by‑elections in the relevant constituencies.[7]

  13. These took place on 16 May 2010. The five resigning members all took part and were re‑elected. Voter turnout was, however, low[8] and other major political parties did not take part in the elections. The cost of the by‑elections was about $126 million.

  14. What followed was intense debate and discussion within the community as to the appropriateness of members resigning from the Legislative Council in order to trigger by‑elections in which the resigning members intended to stand. In June 2011, the Government introduced a Bill proposing that where a member of the Legislative Council resigned, his or her place would be filled by reference to the candidate with the largest number of votes who was not elected in the previous general election. However, after a number of meetings of the Bills Committee of the Legislative Council and after receiving outside submissions, this Bill was not pursued. Instead, the Government decided to consult the public to assess the extent of the perceived problem.

  15. On 22 July 2011, a Consultation Paper on Arrangements for Filling Vacancies in the Legislative Council was issued by the respondent seeking the public’s views on what was termed a “mischief”.[9] It was said that there was considerable concern in the community over the incident of the five resigning members. The Government regarded it as an “abuse” for a member to resign in order to cause a by‑election in which that member intended to stand. Two extracts from the Consultation Paper make the point:-

  16. 1.04

    The Administration considers that it is an abuse of process for a Member to resign in order to trigger a by-election in which the Member intends to stand and seek re‑election. This mischief needs to be addressed. In this regard, the Administration is concerned with the adverse impact such resignations and seeking to be re-elected through by-elections will have on the electoral system and on the public.

    1.05

    Apart from the manpower and financial resources involved, between a Member’s resignation and the by-election, the LegCo will be deprived of the service of a Member, and the constituents will be deprived of the service of the Member as their representative. Moreover, if the phenomenon of a Member resigning in order to trigger a by-election in which he or she seeks to stand becomes a common occurrence (and there have in fact been threats by some to repeat the resignation and by-election exercise), not only will the operation of the LegCo be adversely affected, the integrity of the Legislature will also be undermined and respect for the electoral process lowered.

  17. Against this was the contrary view that there was nothing inappropriate in such resignations being a proper way to convey a political message.[10]

  18. Four options as to possible changes were canvassed in the Paper to deal with the perceived mischief, together with the identification of pros and cons for each option. It is not necessary to go into these options, save to refer only to the one that eventually found favour. This involved restricting the resigning member from participating in any by‑election within the same Legislative Council term.

  19. The consultation period was two months. In addition to the Paper, the Government organized forums to engage the public. The results of the consultation were published in a report.[11] There were as one would expect vastly divergent views, but the consultation seemed to suggest that the majority of respondents favoured some action to be taken to “plug the loophole”.[12]

  20. The report concluded with a proposal that any member who resigned from the Legislative Council would be prohibited from taking part in any by‑election within six months of resignation. This was said to be a more focused way of addressing the problem. The element of deterrence was very much behind this proposal. It was said:[13] “However, we consider that the proposal would transmit a strong signal indicating the community’s disapproval of such kind of resignation and could have considerable effect in preventing Members from abusing the system.”

  21. Following the Report, on 3 February 2012, the Government introduced the Legislative Council (Amendment) Bill 2012. This Bill introduced what is now s 39(2A) of the LCO. A Bills Committee was set up to examine the Bill. A Paper was produced in February 2012 providing the Government’s view on the legality of the Bill containing the legal opinion of external legal counsel.[14] In this Paper were constant references to the justification of the amendment being to deter members from resigning in order to trigger a by‑election in which he or she intended to stand.[15] In the Legislative Council Brief dated 1 February 2012 from the respondent,[16] it was said that following the public consultation, there was “strong public support for the Government to address the mischief.”[17] The Brief also mentioned the need to “deter abusive conduct”.[18]

  22. The political debate in the Legislative Council was heated. One indication of this can be seen in the legal proceedings that were sought to be instituted by one of the five members of the Legislative Council who had resigned in January 2010. On 17 May 2012, Mr Leung Kwok Hung sought leave to apply for judicial review against the President of the Legislative Council. The President had curtailed proceedings in the Council on the amendment Bill after debate at the second reading had taken over 33½ hours with over 1,300 amendments suggested by two legislators (another two of the five resigning members) and after the President had ruled 75 times when Mr Leung spoke on the matter that his speech was irrelevant or repetitious. The application for leave was dismissed.[19] The tactics of these legislators were described by the Judge as “filibustering”. In the judgment of the Court of Final Appeal, it was said:[20] “The avowed intention of the two legislators and their ally, the Appellant (also a legislator), for the introduction of these numerous amendments was to filibuster the Bill, which they opposed and which they apprehended would otherwise be passed by the majority in the Council.”

  23. The Bill was eventually passed in the Legislative Council on 1 June 2012 and s 39(2A) came into force.

  24. A.4 The proceedings below

  25. Consequent on the passing of s 39(2A), the applicant applied for judicial review on the basis that it was unconstitutional. The application was dismissed by Au J[21] primarily on the basis that although constitutional rights were engaged, the provisions in question nevertheless satisfied the proportionality test. In particular, the Judge accorded a wide margin of appreciation to the Legislative Council.

  26. The applicant appealed to the Court of Appeal which dismissed the appeal.[22] Similar to Au J, the Court of Appeal accorded a broad margin of appreciation. Much weight was given to the fact that the Court was, in the present constitutional challenge, dealing with matters of political judgment. As Cheung CJHC said:[23] “Generally speaking, the Court is neither constitutionally positioned nor institutionally equipped to deal with a political issue, that is, an issue essentially involving political rather than legal judgment.”

  27. A.5 The certified question before this Court

  28. On 29 September 2016, leave to appeal was given by the Appeal Committee[24] to appeal to the Court of Final Appeal[25] on the following question of great general or public importance:-

  29. Is section 39(2A) of the Legislative Council Ordinance, Cap. 542 inconsistent with Article 26 of the Basic Law of the Hong Kong Special Administrative Region and/or Article 21 of the Hong Kong Bill of Rights, and therefore unconstitutional?

    B. THE CONTEXT OF ELECTIONS TO THE LEGISLATIVE COUNCIL UNDER THE BASIC LAW AND THE LEGISLATIVE COUNCIL ORDINANCE

  30. The wording of Article 26 of the Basic Law and Article 21 of the Bill of Rights have been set out.[26] Notwithstanding the absence of express qualifications to the right set out in Article 26 of the Basic Law, it is clear that this article must be read together with Article 21 of the Bill of Rights which does contain qualifications.[27] It is accepted that the right to stand for election is not an absolute right. It is also accepted that the words “without unreasonable restrictions” in Article 21 of the Bill of Rights require the application of the proportionality test.[28] This was the way Cheung J (Cheung CJHC as he then was) analysed the words in Chan Kin Sum[29] and this is consistent with textbook authority.[30]

  31. The following points in relation to Article 21 of the Bill of Rights are also of note:-

    1. Article 21(b) refers to both the right to vote and the right to be elected as guaranteeing the free expression of the will of the electors. This reinforces the point made by the applicant that the right to stand for election is a right directly linked to the interest of the electorate being given the widest choice of candidate and for this reason, the right ought not to be unduly restricted. I agree with this general statement.

    2. The Article 21 right refers specifically to “genuine periodic elections” and although it is clear that the right to stand for election extends as well to by‑elections, nevertheless these words suggest the somewhat exceptional nature of by‑elections in the context of periodic elections. Article 68 of the Basic Law states that the Legislative Council shall be constituted by elections. Article 69 of the Basic Law states the term of office of members of the Legislative Council to be four years – this reflects the periodic cycle for elections in Hong Kong. This is also reflected in the LCO which states that the term of office of the Legislative Council is as prescribed in Chapter IV of the Basic Law.[31]

  32. The LCO sets out detailed provisions regarding elections to the Legislative Council. In the specific context of by‑elections, the following provisions are of note:-

    1. Where a member of the Legislative Council resigns, whether expressly or impliedly,[32] a vacancy arises[33] and once a declaration to this effect is made,[34] a by‑election must be held.[35]

    2. Any member who has resigned is eligible for re‑election as a member but this is subject to the disqualification provisions contained in s 39 of the LCO.[36] Prior to the enactment of s 39(2A), a resigning member could, as the five resigning members did in January 2010, stand for re‑election at the ensuing by‑election. The only disqualifications were those set out in the unamended s 39.[37]

    3. Section 39(2A), enacted in June 2012, amended s 39 by adding to the disqualification categories.

  33. The powers and functions of members of the Legislative Council are set out in Articles 73 and 74 of the Basic Law. It is unnecessary to set these out in full; it is sufficient merely to observe that there are important public duties to be discharged by members of the Legislative Council (the Legislature of the HKSAR as it is referred to in the Basic Law).

  34. Lastly in the present context, I draw attention to Article 79(2) of the Basic Law which states as follows:-

  35. The President of the Legislative Council of the Hong Kong Special Administrative Region shall declare that a member of the Council is no longer qualified for the office under any of the following circumstances:

    ....

    (2)

    When he or she, with no valid reason, is absent from meetings for three consecutive months without the consent of the President of the Legislative Council;

  36. The relevance of this provision will be seen below in the context of reasons which a member of the Legislative Council may have for resigning.[38]

  37. Having set out the context of elections to the Legislative Council and the position of members of the Council under the Basic Law and the LCO, I now deal with the relevant approach to constitutional challenges on provisions such as s 39(2A).

  38. C. CONSTITUTIONAL CHALLENGES – THE LEGAL APPROACH

    C.1 The general approach

  39. The determination of constitutionality is, as is well established now, a question of law for the courts to determine. The general approach in cases involving challenges to legislation or other measures said to contravene constitutionally guaranteed rights is set out in the recent decision of this Court in Hysan Development Co. Ltd. v Town Planning Board:-[39]

  40. 43.

    This Court has recognised that certain constitutionally guaranteed rights, such as the prohibition against torture and cruel, inhuman or degrading treatment or punishment, are absolute and that in such cases, there is no room for any proportionality analysis.

    44.

    Where the guaranteed right is not absolute, the law may validly create restrictions limiting such rights. It is for the Court to determine the permissible extent of those restrictions and it does so by a process referred to as a proportionality analysis.

  41. The proportionality analysis referred to in this passage of course does not arise unless three prior steps are satisfied by the person[40] asserting unconstitutionality: the identification of a constitutionally guaranteed right,[41] the identification of the relevant legislation or measure said to infringe such constitutional right and the infringement itself.

  42. Once these three initial steps are satisfied, the next step in the analysis is to look at the constitutional right itself to see whether there are any in‑built qualifications. Where the right is contained in the Basic Law, there may be some qualifications that are expressly stipulated.[42] Qualifications to rights also appear in the Bill of Rights.

  43. In the present case, the relevant right is the right to stand for election and this right has been infringed by the restriction contained in s 39(2A) of the LCO. The relevant constitutional right is contained in Article 26 of the Basic Law and Article 21 of the Bill of Rights. The former provision contains no express qualification, while the latter does. In any event, the proper analysis to be adopted is the proportionality test.[43]

  44. C.2 Proportionality

  45. The proportionality analysis is not expressly set out in constitutional or statute form as such, but has been developed by the courts drawing on the jurisprudence of other jurisdictions.[44]

  46. This Court having recently undertaken a study of the proportionality analysis in Hysan, it is not necessary to repeat the exercise in this judgment. It suffices merely to draw attention to some facets of it that have relevance in the present appeal.

  47. The proportionality analysis involves four steps for the Court to determine. These were set out in Hysan as follows:-[45]

  48. 134.

    In Hong Kong, such a proportionality assessment has been viewed as involving a three-step process of asking:

    (i)

    whether the intrusive measure pursues a legitimate aim;

    (ii)

    if so, whether it is rationally connected with advancing that aim; and

    (iii)

    whether the measure is no more than necessary for that purpose.

    135.

    A fourth step should be added. In line with a substantial body of authority, where an encroaching measure has passed the three-step test, the analysis should incorporate a fourth step asking whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual.

    C.3 A closer consideration of margin of appreciation

  49. I ought to observe here that in the majority of constitutional challenges, the first two steps will provide little controversy[46] and would be relatively simple to apply. It is the third step, in its reference to “no more than necessary” that has generated the need for clarification by the courts, particularly when viewed against the concept of margin of appreciation. An extensive analysis of the third step was undertaken in Hysan and I would respectfully draw attention to that.[47] A summary of the relevant principle can be stated as follows:-[48]

  50. 136.

    At the third stage, assessing the permissible extent of the incursion into the protected right, two main standards have been applied. The first is the test of whether the intruding measure is “no more than necessary” to achieve the legitimate aim in question. This must be understood to be a test of reasonable necessity. If the Court is satisfied that a significantly less intrusive and equally effective measure is available, the impugned measure may be disallowed.

    137.

    An alternative standard which may be applied at the third stage is one which asks whether the encroaching measure is “manifestly without reasonable foundation”, being a standard closely related to the concept of “margin of appreciation” in ECtHR [European Court of Human Rights] jurisprudence.

    138.

    At the supra-national level of the ECtHR, the margin of appreciation doctrine involves the recognition that on certain issues, the Court should allow Member States latitude to decide on the legitimacy of their societal aims and the means to achieve them since they are better placed to make the assessment. Similar considerations have led the Court at a domestic level to allow the legislative and executive authorities latitude or a “margin of discretion” to do the same, applying the “manifestly without reasonable foundation” standard in such cases.

    139.

    The “manifest” standard has been used in cases where the Court recognises that the originator of the impugned measure is better placed to assess the appropriate means to advance the legitimate aim espoused. This has occurred in cases involving implementation of the legislature’s or executive’s political, social or economic policies but the principle is not confined to such cases.

    140.

    The location of the standard in the spectrum of reasonableness depends on many factors relating principally to the significance and degree of interference with the right; the identity of the decision-maker; and the nature and features of the encroaching measure relevant to setting the margin of discretion.

    141.

    The difference between the two standards is one of degree, with the Court in both cases, scrutinising the circumstances of the case and the factual bases claimed for the incursion.

  51. As can be seen therefore, the difference in approach of the courts at the third stage varies depending on the particular circumstances of any given case and this is critical to bear in mind when looking at the impugned measure to see whether (a) the stricter test of the measure being “no more than necessary” to deal with its legitimate aim; or (b) the test of the measure merely being “manifestly without reasonable foundation”, ought to be applied. One should not of course be pre‑occupied with labels and instead adopt a flexible, though principled and structured, approach. Paragraphs 140 to 141 in the passage quoted in the previous paragraph are instructive here.

  52. Though a matter of degree,[49] there are three aspects to consider:-[50]

    1. The nature of the right in question and the degree to which it has been encroached on.

    2. The identification of the relevant decision‑maker (in the case of legislation, this will be the Legislature).

    3. Relevance of the margin of appreciation.

  53. I have already referred to the position of absolute rights.[51] The treatment of other, non‑absolute rights varies depending on the context. Accordingly, where socio‑economic or general policies are involved, the Court’s consideration will be quite different to the position where core‑values – and a fortiori, absolute rights – are involved.[52] Although I have used the term “stricter test”,[53] this is slightly misleading if what is conveyed is that the courts will somehow take a laxer approach to rights depending on circumstances. The matter was put in the following way in Fok Chun Wa:-[54]

  54. 81.

    It is sometimes said that in cases where core-rights or fundamental concepts are concerned, the courts will adopt an “intense” or “more intense” level of scrutiny. These terms, like the terms “margin of appreciation” or “deference”, are used for convenience only and not to be taken literally. They are used to convey the principles identified earlier in this section of the Judgment. There is of course, no question of a court taking a laxer or less vigilant approach whenever any questions of constitutionality arise. Each case is of course approached seriously, only that the legal approach will inevitably differ depending on the circumstances of the case. Where core values or fundamental concepts are involved, these are areas where the courts have (for want of better terms) expertise and experience, and it is part of their constitutional duty to protect these values or concepts. In policy matters not involving these matters, the courts do not have this expertise or experience and, more important, it is not within its constitutional remit to determine matters of government or legislative policy, save where questions of legality arise. As Sir Anthony Mason NPJ put it in HKSAR v Lam Kwong Wai, 601E [45] “the weight to be accorded to the legislative [and I would add, the executive and other authorities’] judgment by the court will vary from case to case depending upon the nature of the problem, whether the executive and the legislature are better equipped than the courts to understand its ramification and the means of dealing with it.”

  55. The term margin of appreciation refers to that area of discretion which the Court will accord to a decision‑maker, or, in the case of legislation, to the legislature. It reflects the separate constitutional and institutional responsibilities of the judiciary and other organs of government.[55] The concept of margin of appreciation was clearly articulated in Hysan:-[56]

  56. 116.

    On the other hand, a decision-maker’s views resulting in the promulgation of the impugned measure may be given much weight and thus afforded a wide margin of discretion reflected by use of a “manifest” standard where the decision-maker is likely to be better placed than the Court to assess what is needed in the public interest. The Court may for instance, be satisfied that he had special access to information; special expertise in its assessment; or an overview enabling him to assess competing and possibly prior claims for scarce resources. The Court might also refrain from intervening because the measure reflects a predictive or judgmental decision which it was the institutional role of the decision-maker to take and as to which no single “right answer” exists.

  57. The “predictive or judgmental decision” referred to in this passage is a facet which assumes some importance in the present case. In the passage set out in the previous paragraph, reference was made to a passage in the judgment of Lord Sumption JSC in R (Lord Carlile of Berriew) v Secretary of State for the Home Department.[57] Fok Chun Wa was a case involving socio‑economic policies of the Government and a wide margin of appreciation was given by the Court in that case. Similarly, matters of national security, defence and foreign policy are also matters where much leeway will be permitted by the Court.[58]

  58. Lord Pannick QC argues that political decisions or legislative provisions reflecting political judgments are often precisely those areas where the courts are likely to afford a large margin of appreciation. I agree. Where electoral laws involve political or policy considerations, a wider margin of appreciation ought generally to be accorded.[59] The authorities from the United Kingdom[60] and the European Court of Human Rights[61] are consistent with this approach when politics and political judgments are involved. In particular, where there has been active political debate on an issue or piece of legislation, the Court will again be inclined to give a wider margin of appreciation.[62] The reason for this approach is evident: the courts are generally not equipped (certainly not better equipped than others) to determine political questions, although of course there are limits. The two tests earlier identified, for example, lay down obvious limits.

  59. Mr Pun SC argues to the contrary and submitted that where a fundamental right such as the right to vote is concerned, no margin of appreciation should be accorded to the Legislature. He relies on the decision of the Supreme Court of Canada in Richard Sauvé v The Attorney General of Canada.[63] The case involved the consideration of a statute[64] completely denying the right to vote to all persons serving sentences of imprisonment of two years or more. This was said to be unconstitutional.[65] The particular passage relied on is contained in the judgment of Chief Justice McLachlin (in a 5:4 decision of the Court):-

    The core democratic rights of Canadians do not fall within a “range of acceptable alternatives” among which Parliament may pick and choose at its discretion. Deference may be appropriate on a decision involving competing social and political policies. It is not appropriate, however, on a decision to limit fundamental rights. This case is not merely a competition between competing social philosophies. It represents a conflict between the right of citizens to vote – one of the most fundamental rights guaranteed by the Charter – and Parliament’s denial of that right. Public debate on an issue does not transform it into a matter of “social philosophy”, shielding it from full judicial scrutiny. It is for the courts, unaffected by the shifting winds of public opinion and electoral interests, to safeguard the right to vote guaranteed by s.3 of the Charter.[66]

  60. This passage must of course to be seen in context. As mentioned above, that case dealt with a situation where the right to vote was entirely lost to a sizeable class whereas the present case (dealing with right to stand for election) affects a relatively small class. In Sauvé, the majority regarded as significant the fact that the Government had failed to identify particular problems to justify the denial of the right to vote. The reasons that were given were said to be “vague”.[67] It was perhaps for this reason that the majority (unlike the minority) did not accord any margin of appreciation. Chief Justice McLachlin said this:-[68]

  61. My colleague Justice Gonthier proposes a deferential approach to infringement and justification. He argues that there is no reason to accord special importance to the right to vote, and that we should thus defer to Parliament’s choice among a range of reasonable alternatives. He further argues that in justifying limits on the right to vote under s.1, we owe deference to Parliament because we are dealing with “philosophical, political and social considerations”, because of the abstract and symbolic nature of the government’s stated goals, and because the law at issue represents a step in a dialogue between Parliament and the courts.

    I must, with respect, demur. The right to vote is fundamental to our democracy and the rule of law and cannot be lightly set aside. Limits on it require not deference, but careful examination. This is not a matter of substituting the Court’s philosophical preference for that of the legislature, but of ensuring that the legislature’s proffered justification is supported by logic and common sense.

    This passage places what was said about margin of appreciation (or deference)[69] in proper context. In my view, this passage does not exclude the importance of considering margin of appreciation in cases involving social, economic and political matters, to which reference has already been made. It merely draws attention to the necessity of adopting a more focused and critical view of the concept in the context of an exclusion of the right to vote.

  62. It reiterates the approach that any encroachment on constitutionally guaranteed rights must be carefully scrutinized by the Courts. The margin of appreciation to be accorded is but one factor in the overall consideration by the Court of proportionality, albeit depending on the circumstances it may assume a greater or lesser degree of importance. It will usually be determinative in the sliding scale as to whether the Court will veer towards applying the “no more than necessary” approach or the “manifestly without reasonable foundation” one.

  63. In either situation of course, a consideration of the extent of the encroachment on the constitutional right will be important. At all times, it will be essential for the Court to keep firmly in mind the value of the right in question. As stated earlier, the question of constitutionality is a legal question for the courts to determine. As was stated by this Court in Mok Charles:-[70]

  64. 56.

    There are, however, obvious limits to the utility of this concept [margin of appreciation]. It is important to acknowledge that while the views of the legislature are to be considered, it is the court that has the ultimate responsibility to determine whether legislation is constitutional. This is a matter of law, only for the courts to determine.

    This is the rationale behind the fourth step in the proportionality analysis.

    C.4 The fourth step

  65. The desirability of this step was gone into in Hysan.[71] It requires, in any determination of whether constitutional rights have been infringed, to take an overall, balanced view. Without such a step, “the proportionality assessment would be confined to gauging the incursion in relation to its aim. The balancing of societal and individual interests against each other which lies at the heart of any system for the protection of human rights would not be addressed.”[72] The Court is required to make a value judgment.

  66. So how are these principles to be applied in the present case?

  67. D. DETERMINATION

  68. It is convenient to deal with the determination of the present appeal by reference to the said four step approach in the proportionality analysis.

  69. D.1 Legitimate aim

  70. In Section A.3 above, I have gone into the background facts of the present case in some detail in order to highlight a number of important aspects:-

    1. The context in which the enactment of s 39(2A) of the LCO arose was a controversial, highly political one.

    2. The political debate emanating from the resignation of the five members[73] involved the public (by way of consultation and forums), the Government and the Legislative Council. Within the Legislative Council itself, the political debate was heated and led to filibustering by legislators (which in turn led to an application for leave to institute judicial review proceedings against the President of the Council).[74]

    3. The enactment of s 39(2A) manifested an attempt to deal with a perceived mischief thought by many members of the community[75] (as well as by the Government and the Legislative Council) to exist, namely, resignation by members of the Legislative Council from the Council in order to trigger by‑elections in which the resigning members would stand.

    4. This perceived mischief led to a concern about the adverse impact that such resignations might have on the electoral system. The fear was that apart from the cost of such by‑elections,[76] the public would be deprived of the services of a member of the Legislative Council during the period between the member’s resignation and when the member’s replacement would be able to take up office. As we have seen,[77] a member of the Legislative Council has important constitutional duties to perform. The adverse impact that was feared was that were such resignations to become a common occurrence, the integrity of the Legislature would be undermined and respect for the electoral process lowered.

    5. The ultimate aim of the amendment that became s 39(2A) was deterrence in order to avoid the adverse impact identified above. I have already referred to the deterrence aspect.[78]

    6. All the above matters were before the Legislative Council when the amendment Bill leading to the enactment of s 39(2A) was debated and considered. Different sides of the argument were before the Council and a balancing exercise had therefore to be undertaken to determine what measures were appropriate to deal with the perceived problem.

  71. Lord Pannick QC submits that given this background to s 39(2A), its aim was clear and this aim was a legitimate one. There is much force in these submissions. The identification by the Legislative Council of the perceived mischief was based on the results of the public consultation following the resignation of the five members and also the views of the Government. There was also extensive debate on the matter. The stated aim of the legislation was therefore clear and this was accepted by the Courts below.[79] The legitimacy of the aim does not of course depend on the Court agreeing with it. Indeed, Lord Pannick was at pains to emphasise that the Court does not have to be convinced that the aims, and in particular where the aims are political ones, are politically correct or even that it agrees with these aims from a political standpoint. The responsibility of the Court is to be satisfied from a legal point of view that the aim is first, identifiable and secondly, legitimate in the sense that it lies within constitutional limits.

  72. Mr Pun’s answer to the question of legitimate aim was simply to emphasise the importance of the right to stand for election. Mr Pun SC also asserted there was a lack of cogent evidence to support the said aim of the legislation. With respect, this was difficult to accept. The resignation of the five members, followed by the public consultation and the debate within the Legislative Council, all demonstrated that the aim of the legislation was to deter the mischief earlier identified. If what he meant was that there was no concrete evidence to demonstrate that if measures were not taken, this would definitely undermine the electoral system,[80] this misses the point. The point was not that an undermining of the electoral system would definitely take place; this was the mischief that was thought to exist and that was sought to be deterred.

  73. In my view, there was clearly a legitimate aim sought to be achieved by the enactment of s 39(2A) of the LCO.

  74. D.2 Rational connection of s 39(2A) to the legitimate aim

  75. The legitimate aim being as identified above, there is no doubt that this part of the proportionality test is satisfied. The respondent’s position was simply that s 39(2A) sought to make it less likely that a member of the Legislative Council would resign voluntarily in order to provoke a by‑election. I accept this argument and to be fair, Mr Pun did not really contend otherwise.

  76. D.3 No more than necessary: the proportionality of the restriction

  77. The background facts and their significance[81] were all matters that were before the Legislative Council in determining what measures were appropriate to deal with the perceived problem. No doubt a number of options were available for consideration and the facts set out above refer to a number of options on which the public were consulted.[82] In my view, in these circumstances, a wide margin of appreciation ought to be accorded. The consequence of a wide margin of appreciation given to the Legislative Council means that in the present context, the appropriate test regarding the legislative choice made (that is, s 39(2A)) should be the manifestly without reasonable foundation test. Where, as in the present case, there are involved matters of political judgment or prediction, some leeway should be permitted to the Legislature to determine what would be an appropriate way of dealing with the perceived mischief. It is not appropriate to adopt a strict “no more than necessary” test in the present case. The Court is not in a position nor is it equipped to apply this test in the circumstances of the present case, involving as it does matters of political judgment and assessment.

  78. An associated point raised by the applicant was this. It has all along been accepted by the respondent in the consultation exercises and debates within the Legislative Council, as well as in argument before the courts, that there were situations in which it would appear justifiable for a member of the Legislative Council to resign, for example, where a member had changed his or her party allegiance and could not in all good conscience continue as a member. Many may think in this type of situation that it would be unfair to disqualify that member from standing in the resulting by‑election. The point made by Mr Pun drawing on this example was that even if it were accepted that a legitimate aim existed, the line had been drawn far too widely so that every member who resigned, whatever the reason and even if such were (so to speak) a good reason, would be caught by the disqualification provisions. Seen in this way, s 39(2A) represented a disproportionate response to the problem: it went far beyond what was necessary or was at all reasonable or (in the language of Article 21 of the Bill of Rights) it was an unreasonable restriction. It was submitted that the line could be drawn much more precisely so that certain defined situations could be identified. Mr Pun provided two more examples: where a member of the Legislative Council simply resigned for the purposes of provoking a by‑election, he could be excluded; and where a member did not know how he or she should vote on an important issue, resignation should be permitted without any disqualification in a by‑election.

  79. I do not accept the argument that the line drawn in the present instance (s 39(2A)) can be faulted:-

    1. By reason of the margin of appreciation to be accorded, the line drawn fell within the range of reasonable options open to the Legislature to adopt in order to deal with the perceived mischief. It was within its political judgment or assessment to adopt this option.

    2. The line suggested by Mr Pun to take into account those specific situations mentioned above, is itself far from clear. All involve a significant political dimension which would be in practice difficult, if not impossible, to operate. Certainly, the Court should not be put (nor ought it to be placed) in a position where it had to decide on political matters of this kind or have to be drawn into a political debate. As mentioned above, the context of the enactment of s 39(2A) was a controversial, highly political one.

    3. Where, as in this case, the Legislature is entitled to draw the line it has, even though this may result in ‘hard’ cases, this does not mean that the line is impermissibly drawn. In R (Animal Defenders International) v Secretary of State for Culture, Media and Sport,[83] Lord Bingham of Cornhill said this:-

    4. A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.

      This passage was expressly adopted in Fok Chun Wa.[84]

  80. It was at one stage argued by the applicant that other situations where it was unfair to apply the total disqualification in s 39(2A) included where a member of the Legislative Council resigned through poor health. It was said that where the member recovered in time for the by‑election, it would be unfair if he or she were not permitted to stand. Here, apart from the matters set out in the previous paragraph, I would also refer to Article 79(2) of the Basic Law.[85] If a member were to be in the unfortunate position of being ill, he or she could consider seeking the consent of the President of the Council or that member would have in any event a valid reason to be absent.

  81. For these reasons, s 39(2A) satisfies the third step of the proportionality analysis.

  82. D.4 Has a reasonable balance been struck?

  83. This is the fourth step identified in Hysan.[86]

  84. There is no doubt, as Mr Pun has impressed on this Court throughout his submissions, that the right to stand for election is an important constitutional right. He reminded the Court that the right to vote has been described as “without doubt the most important political right”.[87] A court must therefore always consider carefully any encroachment on the right. The fourth step requires a court to take an overall view in the proportionality exercise to ensure that any encroachment on a constitutional right is fully justified. In the present case, however, this fourth step is satisfied by the respondent:-

    1. The first three steps of the proportionality exercise are satisfied and in most cases, this will point towards the fourth step being satisfied as well.[88]

    2. The encroachment on the constitutional right to stand for election is a relatively small one. It only applies to by‑elections (and not general elections) and the bar is solely against the resigning member. As far as he or she is concerned, s 39(2A) cannot be said to bear harshly on the resigning member since, having been elected on a four‑year mandate and perfectly entitled to stay in office as a legislator, he or she has chosen voluntarily to resign with full knowledge of the consequences. Even then, the bar is only for six months.

    3. As far as voters in the relevant constituency are concerned, the by‑election is held in any event and their choice of candidate is unrestricted (except for the resigning member).

  85. E. CONCLUSION

  86. For the above reasons, I would dismiss this appeal.

  87. I would also make an order nisi as to costs that the applicant should pay to the respondent the costs of the appeal, to be taxed if not agreed and that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations. If any party wishes to have a different order for costs, written submissions should be served on the other party and lodged with the Court within fourteen days of the handing down of this judgment, with liberty on the other party to lodge written submissions in reply within fourteen days thereafter. In the absence of such written submissions, the order nisi will stand absolute at the expiry of the time limited for these submissions.

    Justice Ribeiro PJ

  88. I agree with the judgment of the Chief Justice.

    Justice Tang PJ

  89. I agree with the judgment of the Chief Justice.

    Justice Fok PJ

  90. I agree with the judgment of the Chief Justice.

    Justice French NPJ

  91. I agree with the judgment of the Chief Justice.

    Chief Justice Ma

  92. For the above reasons, the appeal is dismissed. There will also be an order nisi as to costs as set out in para. 63 above.


[1] Cap. 542.

[2] He is the appellant in this appeal. Mr Kwok Cheuk Kin is a registered voter entitled to vote at general elections and by‑elections in Hong Kong. He was represented in these proceedings by Mr Hectar Pun SC and Mr Newman Lam.

[3] As to this test, see further below at Section C below.

[4] He is the respondent in this appeal. The Secretary for Constitutional and Mainland Affairs was responsible for handling and dealing with the relevant provision in the present case. The Secretary was represented in this appeal by Lord Pannick QC, Mr Johnny Mok SC and Mr Jin Pao.

[5] The Legislative Council consists of members returned by geographical constituencies and functional constituencies (35 members each):- see Article 68 of the Basic Law and Annex II thereto (“Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and Its Voting Procedures”, as amended in 2010). See also Part 3 of the LCO as to geographical and functional constituencies.

[6] Members of the LSD and the Civic Party.

[7] Where a member of the Legislative Council resigns, a vacancy arises and the Electoral Affairs Commission must arrange for a by‑election to be held: see ss 14, 15, 35 and 36 of the LCO.

[8] It was in fact a record low, only 17.19% (about 580,000 electors). This was about a third of those who had voted at the previous three elections.

[9] In this judgment, the terms “mischief” and “abuse” are referred to. These are not intended to be tendentious nor are they used as any form of criticism but are used as they were the terms which appeared in the various documents before us.

[10] Paras. 1.03 and 5.03 of the Consultation Paper.

[11] The Consultation Report on Arrangements for Filling Vacancies in the Legislative Council dated January 2012.

[12] In para. 3.17 of the Report, it was said that 31,120 written submissions were received with the majority (70%) considering that the said mischief was a loophole that needed to be plugged.

[13] In para. 6.10.

[14] The opinion was provided by Lord Pannick QC.

[15] At para. 15.

[16] This is a Brief provided to the Legislative Council to explain and justify the need for legislation or amendments to legislation.

[17] At para. 8(a).

[18] At para. 11(d).

[ [19] Leung Kwok Hung v President of the Legislative Council (Filibuster) [2012] 3 HKLRD 470. This was eventually appealed to this Court: Leung Kwok Hung v President of the Legislative Council (No. 1) (2014) 17 HKCFAR 689.

[20] At para. 6.

[21] In a judgment dated 5 March 2014.

[22] In a judgment dated 22 October 2015 (Cheung CJHC, Lam VP and Poon JA).

[23] At para. 6.

[24] Ma CJ, Tang and Fok PJJ.

[25] Pursuant to s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap. 484.

[26] At para. 3 above.

[27] The term “without unreasonable restrictions” is used in that article. Where a right is unqualified in the Basic Law but the corresponding right is qualified in the Bill of Rights, the right is not absolute: see Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, at paras. 16-21; Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166, at paras. 55-62. See also in this context Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480, at paras. 26-28.

[28] See Section C below.

[29] At paras. 63-78.

[30] See Proportionality: Constitutional Rights and their Limitations (Aharon Barak) (2012) (Cambridge University Press) at Pg. 371-378.

[31] See s 4(1). Articles 68 and 69 of the Basic Law are both contained in Chapter IV Section 3 of the Basic Law.

[32] See ss 13(3), 14 and 15(1)(a) of the LCO.

[33] Section 15(1) of the LCO.

[34] Under s 35.

[35] See s 36(1)(a).

[36] See s 16.

[37] Such as for judicial officers, prescribed public officers and officers of the Legislative Council etc.

[38] See Section D.3 below.

[39] (2016) 19 HKCFAR 372 at paras. 43-44 (in the judgment of Ribeiro PJ with whose judgment the other members of the Court agreed).

[40] Usually the applicant in judicial review proceedings.

[41] See Catholic Diocese of Hong Kong v Secretary for Justice (2011) 14 HKCFAR 754 at para. 65. In exceptional cases, however, a proportionality exercise is performed where a constitutional challenge is made against measures said to be inconsistent with the Basic Law even though no individual right is engaged: see Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd., FACV 10/2016, at para. 12; Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762, at paras. 20, 21, 26 and 34.

[42] Such as Article 30 of the Basic Law where the freedom and privacy of communication may not be infringed except where the relevant authority may inspect communications “in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.”

[43] See para. 22 above.

[44] See Hysan at para. 47.

[45] At paras. 134-135.

[46] Although in the present case, both steps are disputed. Indeed, as will be seen, the first step (legitimate aim) is crucial.

[47] See Section G of the judgment.

[48] At paras. 136-141.

[49] The phrase “sliding scale” has also been used: see Pham v Secretary of State for the Home Department [2015] 1 WLR 1591, at para. 106 per Lord Sumption JSC (the passage is quoted in Hysan at para. 63).

[50] Hysan at para. 140.

[51] See para. 29 above setting out para. 43 of Hysan.

[52] See Hysan at paras. 108-113; Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, at paras. 76-81.

[53] See, for example, para. 37 above.

[54] At para. 81.

[55] See Hysan at paras. 99 and 118; Fok Chun Wa at para. 64.

[56] At para. 116.

[57] [2015] AC 945 at para. 34.

[58] See Hysan at para. 117.

[59] See Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735 at para. 45.

[60] Apart from Lord Carlile (see para. 41 fn 57 above), see also A v Secretary of State for the Home Department [2005] 2 AC 68, at para. 29 and R (Countryside Alliance) v Attorney General [2008] 1 AC 719, at para. 45.

[61] Such as Zdanoka v Latvia (2006) 45 EHRR 478, at para. 115(c) (where the political evolution of the country concerned was referred to); Sukhovetskyy v Ukraine(2007) 44 EHRR 1185, at para. 67 (where the “delicate balance between conflicting [political] interests” was referred to).

[62] See Huang v Secretary of State for the Home Department [2007] 2 AC 167, at para. 17; see also Sukhovetskyy at para. 65.

[63] [2002] 3 SCR 519.

[64] Section 51(e) of the Canada Elections Act.

[65] As breaching the right to vote (Article 3 of the Canadian Charter of Rights and Freedoms) and the right to equality (Article 15(1) of the Charter).

[66] At para. 13. See also para. 15 where the Chief Justice also said, “While a posture of judicial deference to legislative decisions about social policy may be appropriate in some cases, the legislation at issue does not fall into this category.”

[67] At paras. 22-26.

[68] At paras. 8 and 9.

[69] The term “deference”, intended to be the same concept as margin of appreciation, is not, however, an appropriate term to use: see Hysan at para. 99; see also Mok Charles at para. 79.

[70] At para. 56.

[71] See Sections F.2 and F.3 of the judgment.

[72] See Hysan at para. 78. See also para. 79.

[73] See para. 8 above.

[74] See para. 17 above.

[75] This was said to be “strong”: see para. 16 above.

[76] It will be recalled that the May 2010 by‑elections involved expenditure of about $126 m: see para. 9 above.

[77] See para. 25 above.

[78] See paras. 15 and 16 above.

[79] See paras. 57-63 of the judgment of Au J; para. 52 of the judgment of the Court of Appeal.

[80] See para. 50(4) above.

[81] See Section A.3 and para. 50 above.

[82] See para. 13 above. Whether or not the other options were feasible or acceptable is not necessary to determine.

[83] [2008] 1 AC 1312, at para. 33.

[84] At para. 71.

[85] See paras. 26 and 27 above.

[86] See Section C.4 above.

[87] Chan Kin Sum at para. 164 (para. 22 fn 27 above).

[88] See Hysan at para. 73.


Representations

Hectar Pun SC and Newman Lam, instructed by Ho Tse Wai & Partners, assigned by the Director of Legal Aid, for the Appellant.

Lord Pannick QC, Mr Johnny Mok SC and Mr Jin Pao, instructed by the Department of Justice, for the Respondent.


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