FACV
No. 12 of 2016
IN
THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL
APPEAL NO. 12 OF 2016 (CIVIL)
(ON APPEALFROM CACV NO. 57 OF 2014)
(ON APPEALFROM CACV NO. 57 OF 2014)
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BETWEEN
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KWOK
CHEUK KIN
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Applicant
(Appellant)
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and
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SECRETARY
FOR CONSTITUTIONAL AND MAINLAND AFFAIRS
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Respondent
(Respondent)
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________________________
Before:
Chief Justice Ma, Mr Justice Ribeiro PJ,Mr Justice Tang PJ, Mr
Justice Fok PJ and Mr Justice French NPJ
Date
of Hearing: 20 June 2017
Date
of Judgment: 11 July 2017
________________________
J
U D G M E N T
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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.
A.1
The relevant statutory provision and the constitutional provisions
2. 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):-
“(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.
(1) Article 26 of the Basic Law states:-
“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.”
(2) Article 21 of the Bill of Rights states:-
“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.”
A.2
The parties’ positions in brief
(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.
A.3
Background facts
5. It
is now convenient to go into the facts in some detail in order to
underline the political origins of s 39(2A).
6. 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.
7. There
was much political controversy caused by this proposal but the LSD
and another political party, the Civic Party, adopted it.
8. 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]
9. 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.
10. 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.
11. 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:-
“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.”
12. Against
this was the contrary view that there was nothing inappropriate in
such resignations being a proper way to convey a political
message.[10]
13. 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.
14. 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]
15. 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.”
16. 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]
17. 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.”
18. The
Bill was eventually passed in the Legislative Council on 1 June 2012
and s 39(2A) came into force.
A.4
The proceedings below
19. 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.
20. 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.”
A.5
The certified question before this Court
21. 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:-
“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
22. 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]
(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]
24. 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.
25. 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).
26. Lastly
in the present context, I draw attention to Article 79(2) of the
Basic Law which states as follows:-
“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;”
27. 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]
28. 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).
C.
CONSTITUTIONAL CHALLENGES – THE LEGAL APPROACH
C.1
The general approach
29. 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]
“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.”
30. 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.
31. 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.
32. 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]
C.2
Proportionality
33. 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]
34. 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.
35. The
proportionality analysis involves four steps for the Court to
determine. These were set out in Hysan as
follows:-[45]
“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
36. 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]
“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.”
37. 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.
(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.
39. 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]
“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.”
40. 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]
“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.”
41. 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 and others) 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]
42. 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.
43. 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 and Others.[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]
44. 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]
“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.
45. 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.
46. 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]
“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
47. 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.
D.
DETERMINATION
49. It
is convenient to deal with the determination of the present appeal by
reference to the said four step approach in the proportionality
analysis.
D.1
Legitimate aim
50. 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.
51. 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.
52. 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.
53. In
my view, there was clearly a legitimate aim sought to be achieved by
the enactment of s 39(2A) of the LCO.
D.2
Rational connection of s 39(2A) to the legitimate aim
54. 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.
D.3
No more than necessary: the proportionality of the restriction
55. 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.
56. 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.
57. 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:-
“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]
58. 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.
D.4
Has a reasonable balance been struck?
61. 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).
E.
CONCLUSION
63. 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.
Mr
Justice Ribeiro PJ:
Mr
Justice Tang PJ:
Mr
Justice Fok PJ:
Mr
Justice Robert French NPJ:
Chief
Justice Ma:
68. 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.
|
(Geoffrey
Ma)
Chief Justice |
(R
A V Ribeiro)
Permanent Judge |
(Robert
Tang)
Permanent Judge |
|
|
|
|
|
(Joseph
Fok)
Permanent Judge |
(Robert
French)
Non-Permanent Judge |
Mr
Hectar Pun SC and Mr 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
[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 and prescribed public officers are
disqualified as 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.
FACV
No. 12 of 2016
IN
THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL
APPEAL NO. 12 OF 2016 (CIVIL)
(ON APPEALFROM CACV NO. 57 OF 2014)
(ON APPEALFROM CACV NO. 57 OF 2014)
________________________
|
BETWEEN
|
||
|
|
KWOK
CHEUK KIN
|
Applicant
(Appellant)
|
|
|
and
|
|
|
|
SECRETARY
FOR CONSTITUTIONAL AND MAINLAND AFFAIRS
|
Respondent
(Respondent)
|
________________________
Before:
Chief Justice Ma, Mr Justice Ribeiro PJ,Mr Justice Tang PJ, Mr
Justice Fok PJ and Mr Justice French NPJ
Date
of Hearing: 20 June 2017
Date
of Judgment: 11 July 2017
________________________
J
U D G M E N T
________________________
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.
A.1
The relevant statutory provision and the constitutional provisions
2. 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):-
“(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.
(1) Article 26 of the Basic Law states:-
“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.”
(2) Article 21 of the Bill of Rights states:-
“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.”
A.2
The parties’ positions in brief
(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.
A.3
Background facts
5. It
is now convenient to go into the facts in some detail in order to
underline the political origins of s 39(2A).
6. 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.
7. There
was much political controversy caused by this proposal but the LSD
and another political party, the Civic Party, adopted it.
8. 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]
9. 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.
10. 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.
11. 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:-
“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.”
12. Against
this was the contrary view that there was nothing inappropriate in
such resignations being a proper way to convey a political
message.[10]
13. 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.
14. 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]
15. 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.”
16. 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]
17. 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.”
18. The
Bill was eventually passed in the Legislative Council on 1 June 2012
and s 39(2A) came into force.
A.4
The proceedings below
19. 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.
20. 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.”
A.5
The certified question before this Court
21. 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:-
“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
22. 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]
(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]
24. 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.
25. 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).
26. Lastly
in the present context, I draw attention to Article 79(2) of the
Basic Law which states as follows:-
“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;”
27. 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]
28. 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).
C.
CONSTITUTIONAL CHALLENGES – THE LEGAL APPROACH
C.1
The general approach
29. 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]
“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.”
30. 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.
31. 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.
32. 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]
C.2
Proportionality
33. 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]
34. 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.
35. The
proportionality analysis involves four steps for the Court to
determine. These were set out in Hysan as
follows:-[45]
“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
36. 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]
“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.”
37. 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.
(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.
39. 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]
“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.”
40. 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]
“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.”
41. 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 and others) 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]
42. 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.
43. 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 and Others.[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]
44. 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]
“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.
45. 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.
46. 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]
“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
47. 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.
D.
DETERMINATION
49. It
is convenient to deal with the determination of the present appeal by
reference to the said four step approach in the proportionality
analysis.
D.1
Legitimate aim
50. 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.
51. 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.
52. 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.
53. In
my view, there was clearly a legitimate aim sought to be achieved by
the enactment of s 39(2A) of the LCO.
D.2
Rational connection of s 39(2A) to the legitimate aim
54. 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.
D.3
No more than necessary: the proportionality of the restriction
55. 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.
56. 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.
57. 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:-
“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]
58. 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.
D.4
Has a reasonable balance been struck?
61. 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).
E.
CONCLUSION
63. 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.
Mr
Justice Ribeiro PJ:
Mr
Justice Tang PJ:
Mr
Justice Fok PJ:
Mr
Justice Robert French NPJ:
Chief
Justice Ma:
68. 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.
|
(Geoffrey
Ma)
Chief Justice |
(R
A V Ribeiro)
Permanent Judge |
(Robert
Tang)
Permanent Judge |
|
|
|
|
|
(Joseph
Fok)
Permanent Judge |
(Robert
French)
Non-Permanent Judge |
Mr
Hectar Pun SC and Mr 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
[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 and prescribed public officers are
disqualified as 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.
香港終審法院
本摘要由終審法院司法助理擬備
並非判案書的一部分
判案書可於下述網址取閱﹕
或
新聞摘要
郭卓堅
訴
政制及內地事務局局長
終院民事上訴2016年第12號
（原高院民事上訴2014年第57號）
上訴人﹕郭卓堅
答辯人﹕政制及內地事務局局長
主審法官﹕終審法院首席法官馬道立、終審法院常任法官李義、終審法院常任法官鄧國楨、終審法院常任法官霍兆剛及終審法院非常任法官范禮全
下級法院：原訟法庭(區慶祥法官)；上訴法庭(張舉能首席法官、林文瀚副庭長及潘兆初法官)
判決﹕一致裁定駁回上訴
判案書﹕終審法院首席法官馬道立宣告主要判詞，本院其他成員表示贊同其所言
聆訊日期﹕2017年6月20日
判案書日期﹕2017年7月11日
法律代表﹕
資深大律師潘熙先生及大律師林承演先生（由法律援助署署長委派何謝韋律師事務所延聘）代表上訴人
御用大律師彭力克勳爵、資深大律師莫樹聯先生及大律師
鮑進龍先生（由律政司延聘）代表答辯人
摘要﹕
1. 上訴人質疑第542章《立法會條例》第39（2A）條的合憲性，因為該條文影響《基本法》第26條及《香港人權法案》第21條賦予的參選權。第39（2A）條禁止辭去議席的立法會議員在辭職後6個月内參加補選。
4. 立法會議員辭職後參加由其辭職所引發的補選這個做法削弱了選舉制度，而第39（2A）條乃立法機關為處理此受損情況時可考慮的合理選擇範圍之內。第39（2A）條對憲法賦予的參選權所造成的侵犯相對地很小，原因是這只適用於補選(而被禁止參選的議員大可繼續出任立法會議員)
，況且該條文只是禁止參選6個月而已。
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