Read the full judgment text of HCAL 79/2008 on BabelCite. This High Court CFI judgment was delivered on 11 March 2009 before A Cheung J.
Constitutional and administrative law – judicial review – voting rights – prisoners – convicted persons – remanded persons – Legislative Council elections – right to vote under Basic Law arts 26 and 39 and Hong Kong Bill of Rights art 21(b) / ICCPR art 25(b) – s 31(1)(a) and (b) of the Legislative Council Ordinance (Cap 542) (registration restrictions) and s 53(5)(a) and (b) (voting restrictions) held unconstitutional in earlier judgment on 8 December 2008 – whether 'to that extent' wording should be included in declaration – Court rejected proposed wording that the provisions were inconsistent 'to the extent' they were not 'reasonable restrictions' as it would create confusion – provisions unconstitutional in their entirety without words of limitation or blue-pencilling – declaration of breach against Electoral Affairs Commission for 7 September 2008 elections refused for prisoners because EAC was following the existing law disenfranchising all prisoners and refused for remanded persons due to lack of concrete evidence of any wrongful refusal by EAC – declarations granted regarding EAC's statutory duty under s 4 of Electoral Affairs Commission Ordinance (Cap 541) and regulations 28 and 30 of Cap 541D to make all necessary arrangements within its powers to provide prisoners and remanded persons who are registered as electors with access to polling stations on election day – no order of mandamus against EAC as it had already made substantial efforts and put in place arrangements for remanded persons in case of a by-election – temporary suspension order refused for registration restriction declarations to avoid the unacceptable result of preventing prisoners expected to be released from registering as electors – temporary suspension order granted for voting restriction declarations up to 31 October 2009 following Koo Sze Yiu v Chief Executive of the HKSAR (2006) 9 HKCFAR 441, as legislature must be afforded time to work out replacement provisions – a temporary suspension order, unlike a temporary validity order, does not provide a legal shield to the Government and does not undermine the rule of law – liberty to apply for extension of temporary suspension order – liberty to apply for temporary validity order given without prejudice to questions of jurisdiction and whether Court is functus officio – costs awarded to applicants – two counsel certified.
Legal issues: Form of declaration of unconstitutionality for voting restriction provisions · Whether to make declaration of breach against EAC for 7 September 2008 elections · Whether to grant declarations regarding EAC's legal duty to provide voting access · Whether to grant temporary suspension order for registration restriction declarations · Whether to grant temporary suspension order for voting restriction declarations
Outcome: Declarations of unconstitutionality made regarding s 31(1)(a) and (b) and s 53(5)(a) and (b) of the Legislative Council Ordinance in all three applications; declarations granted regarding EAC's statutory duty to make arrangements for prisoners and remanded persons; declaration of breach against EAC for 7 September 2008 elections refused; no order of mandamus against EAC; temporary suspension order granted for voting restriction declarations up to 31 October 2009; temporary suspension order refused for registration restriction declarations; costs awarded to applicants; two counsel certified.
Cited by 13 cases · Cites 1 case