Read the full judgment text of CACV 137/1999 on BabelCite. This Court of Appeal judgment was delivered on 26 January 2000 before Chan CJHC, Nazareth VP, Mayo JA.
Administrative and constitutional law – judicial review – village representative elections in the New Territories – exclusion of non-indigenous villagers from voting or standing as candidates – whether village elections are private or public affairs – whether exclusion breaches ICCPR Article 25, Basic Law Articles 26, 39 and 40, and section 35 of the Sex Discrimination Ordinance (Cap 480) – declaratory relief under Order 53 rule 1 – Heung Yee Kuk Ordinance (Cap 1097) as ongoing or fixed time legislation. These four consolidated appeals arose from two judicial review applications, AL 112/1998 and AL 28/1999, both concerning the right of non-indigenous villagers to participate in village representative elections. In AL 112/1998, the applicant Mr Chan Wah, a non-indigenous villager married to an indigenous villager and lifelong resident of Po Toi O Village in the Hang Hau area, was removed from the voter register by a vetting committee on the ground he was not an indigenous villager. Findlay J granted declarations that the arrangements were unlawful and ordered costs against the respondents and intervener. In AL 28/1999, the applicant Mr Tse Kwan Sang, a non-indigenous villager of Shek Wu Tong Village in the Pat Heung area, was permitted to vote but not to stand as a candidate; Cheung J granted declarations, declared the March 1999 election null and void, and ordered a re-election. The Equal Opportunities Commission appeared as amicus curiae. The Court of Appeal held that village representative elections are public affairs given the constitutional role of village representatives, the substantial involvement of Government through District Offices, the funding of elections with public money, and the requirement of approval of successful candidates by the Secretary for Home Affairs under section 3(3) of the Heung Yee Kuk Ordinance. The Heung Yee Kuk Ordinance was held to be ongoing legislation, not a fixed-time enactment, and its preamble and objects require the Kuk to be truly representative of all informed and responsible opinion in the New Territories. Article 40 of the Basic Law protects existing traditional rights and interests of indigenous villagers relating to property matters (such as small houses, burial rights, succession, removal compensation and recognition of the Heung Yee Kuk) but does not confer any political right to exclude non-indigenous villagers from elections. The exclusion of non-indigenous villagers from village elections was held to be inconsistent with Article 21(a) and (b) of the Hong Kong Bill of Rights Ordinance (ICCPR Article 25) and with Article 26 of the Basic Law. The arrangements also breached section 35 of the Sex Discrimination Ordinance: in Po Toi O Village, non-indigenous females married to indigenous villagers could vote but non-indigenous males married to indigenous villagers could not; in Shek Wu Tong Village, married female indigenous villagers faced a 7-year residence requirement not imposed on males, and female indigenous villagers were excluded from standing as candidates. The court applied the 'but for' test from James v Eastleigh Borough Council, holding that discriminatory effect, not intention, was determinative. The court had power to grant declaratory relief in judicial review proceedings under Order 53 rule 1 even where no quashing order was possible, following R v Secretary of State for Employment, ex parte EOC. However, the trial judge was found to lack power to order a re-election, and that order was set aside. The appeals in CACV 137/1999 and 139/1999 were dismissed, as were the appeals in CACV 278/1999 and 279/1999, with an order nisi that the appellants bear the costs of the respective appeals. The Government later appealed to the Court of Final Appeal in FACV 11 & 13/2000, which was dismissed on 22 December 2000.
Legal issues: Whether village representative elections are private or public affairs · Construction of the Heung Yee Kuk Ordinance as ongoing legislation · Whether exclusion of non-indigenous villagers breaches Article 21 of the Bill of Rights (ICCPR Article 25) · Whether the election arrangements are contrary to Article 26 of the Basic Law · Whether the election arrangements breach section 35 of the Sex Discrimination Ordinance · Whether the court can grant declaratory relief in judicial review where no quashing order is possible · Power of the court to order a re-election of village representatives · Whether Article 40 of the Basic Law protects a right of indigenous villagers to exclude non-indigenous villagers from village elections
Outcome: Appeals in CACV 137/1999 and 139/1999 dismissed. Appeals in CACV 278/1999 and 279/1999 also dismissed, except that the order for re-election in Shek Wu Tong Village is set aside.
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