Kwok Cheuk Kin v. Secretary for Constitutional and Mainland Affairs

HCAL 72/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 72 OF 2012

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J U D G M E N T

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A. INTRODUCTION

1.On 1 June 2012, the Legislative Council (“LegCo”) passed a bill (“the 2012 Bill”) to add s 39(2A) to the Legislative Council Ordinance (Cap 542) (“the LCO”).

2.The effect of s 39(2A) is to disqualify a LegCo member (“LegCo Member”) who resigns from office from being nominated as a candidate to stand at a by‑election within a six month period from the date of the resignation taking effect, unless an intervening general election is held.

3.The applicant in this judicial review seeks to challenge the constitutionality of s 39(2A).  He says it is inconsistent with the right of Hong Kong permanent residents to stand for election as guaranteed by Article 26 of the Basic Law (“BL26”) and Article 21 of the Hong Kong Bill of Rights (“BOR21”)[1].

4.It is common ground that the right to stand for election under BL26 and BOR21 is not an absolute one, and could be subject to restrictions which are justified and reasonable in the eyes of the law under the proportionality test[2].

5.However, it is the applicant’s case that s 39(2A) is unconstitutional since the restriction thereof over the right to stand for election does not satisfy the proportionality test as it:

(1)  does not serve any legitimate aim. In particular, it is illegitimate to seek to deter a LegCo Member from resigning in order to seek re-election in the ensuing by-election irrespective of the reasons for resignation; it is also illegitimate to seek to curtail his right to stand for election in the by-election ensuing from his resignation;

(2)  bears no rational connection between the restriction and any alleged legitimate aim put forward by the Administration; and

(3)  is in any event disproportionate to the alleged legitimate aim.

6.Thus, the principal issues arising from this judicial review are (a) whether the restriction provided under s 39(2A) serves a legitimate purpose, (b) if so, whether there is a rational connection between the restriction and the legitimate purpose, and (c) if so, whether the restriction is proportionate.

B.  BACKGROUND

7.The relevant background is uncontroversial and can be summarised as follows.

8.On 25 January 2010, five LegCo Members gave notice of their resignation which took effect on 29 January 2010.  Each was an elected representative of a different geographical constituency (“GC”) in LegCo.  Each intended however to stand as a candidate at the subsequent by‑election. They did this in an avowed purpose of triggering a “de facto referendum” campaign for implementing universal suffrage and the abolition of functional constituencies.

9.On 16 May 2010, LegCo by-elections were held to return one member for each affected GC.  All other major political parties (that is, those apart from the parties represented by the resigning LegCo Members) did not participate in the by-elections.  Each of the resigning LegCo Members was re-elected.  Some $126 million public expenditure was incurred to organise the by-elections.  Around 580,000 electors voted in the by-elections, which represented a turnout rate of about 17.19%.  This is said to be one of the lowest turn-outs for LegCo elections.

10.Since then, there were divided views in Hong Kong about the appropriateness of LegCo Members resigning to force a by-election.  Some took the view that there was nothing wrong in what had occurred, and believed that whether the public approved that could be left to the votes.  Some however regarded the tactics as an unnecessary and a significant drain on public resources, and suggested that steps be taken to prevent that from repeating again.

11.The Administration undertook a review of the matter, and initially proposed to stop this from repeating by proposing that a mid-term vacancy would be filled by a “replacement arrangement”.  It proposed that the candidate with the next largest number of votes in the preceding general election would be returned to fill a mid-term vacancy.  On 3 June 2011, the Administration introduced the Legislative Council Amendment Bill (“the 2011 Bill”) into the LegCo for seeking to implement this arrangement.  It is noted that the proposal had attracted various criticisms from different corners of the society.  The Administration sought to revise the proposal during the examination of the 2011 Bill by the Bills Committee. However, after considering the views of the Bills Committee, the Administration did not resume the Second Reading of the 2011 Bill.  Instead, it decided to conduct a public consultation for an assessment of public views on this issue.

12.On 22 July 2011, the Administration published a consultation paper (“the Consultation Paper”) on the arrangements for filling vacancies in LegCo.  It set out what the Administration regarded as the mischief which required addressing.  The public was invited to express views on whether measures were needed to address LegCo Members resigning in order to trigger by-elections in which they intend to stand and, if so, views on the four alternative options provided in the Consultation Paper.

13.The consultation ended on 24 September 2011. During the consultation, the Administration received 31,120 written submissions.  Two public forums were organised and joined by over 450 members of the public.  Most senior Government officials and policy secretaries attended 11 forums of discussion sessions organised by different organisations. At the same time, there were views expressed criticising the manner in which the consultation was carried out[3].

14.The Administration published its “Consultation Report on Arrangements for Filling Vacancies in the Legislative Council” (“the Consultation Report”) on 20 January 2012.

15.The Consultation Report explained that a majority of the written submissions received considered that there was a mischief which needed to be addressed.  The general view of the community was that the Administration should introduce legislation to address this matter, but that such legislation should retain a right for the electors to vote for a replacement in a by-election.

16.After considering these views, the Administration decided to introduce the 2012 Bill into LegCo on 3 February 2012.  As mentioned above, the proposal was that a LegCo Member who voluntarily resigned from office under s 13 or 14 of the LCO[4] would be prohibited from standing in any by-election in the same LegCo Term within six months from his resignation.

17.The Hong Kong Bar Association also issued a statement on 17 February 2012, urging the Administration not to introduce the changes under the 2012 Bill, as it believed that there were insufficient justifications to support the changes which would interfere with a fundamental constitutional right.

18.On the other hand, at the Bills Committee stage, the Administration published a paper on the constitutionality of the proposal stating the Administration’s view that the changes were compatible with the Basic Law and the Bill of Rights.

19.The 2012 Bill was discussed at the Bills Committee and hotly debated in LegCo.  It was passed on 1 June 2012 and the relevant amendments to the LCO took effect on 1 October 2012.

C.  THIS JUDICIAL REVIEW

20.As I mentioned above, in this judicial review, the applicant challenges that s 39(2A) is unconstitutional as the restriction against a resigning LegCo Member from standing for election in the ensuing by‑election is inconsistent with the right to stand for election under BL26 and BOR21 as it does not satisfy the proportionality test.

21.It is helpful to set out these relevant provisions first.

22.BL26 provides:

“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.” (emphasis added)

23.BOR21 provides:

“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.” (emphasis added)

24.On the other hand, s 39(2A) of LCO provides that:

“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.”

C1.  The uncontroversial applicable principles

25.Before I deal with the competing arguments raised in this application, I think it would be useful to set out what I regard as the uncontroversial legal principles relevant to this application.  They are as follows.

26.First and importantly, it is accepted that the right to stand for election under BL26 and BOR21 is not absolute.  This is clear from the wording itself:  BL26 confers the right “in accordance with law”, while BOR21 confers a right to stand for election “without reasonable restrictions”.  It has been held by A Cheung J (as the learned CJHC then was) in Chan Kin Sum v Secretary for Justice[5] that the right to stand for election may validly be restricted if the restriction is prescribed by law and is not unreasonable.  There are at present various restrictions imposed on the right to stand for election[6].

27.Second, in determining whether a restriction is “unreasonable” under BOR21, a proportionality test is to be applied, which involves the following three questions[7]:

(1)  Whether the restriction is imposed to pursue a legitimate aim;

(2)  If so, whether there is a rational connection between the aim and the restriction adopted; and

(3)  If so, whether the restriction is proportionate.

28.Moreover, the criterion of proportionality is to ensure that the restriction does not curtail the rights in question to such an extent as to impair their very essence or to deprive them of their effectiveness.  There also has to be a discernible and sufficient link between the sanction and the conduct and the circumstances of the individual concerned.  In applying the test, the court should also have regard to the historical and current state of political development in Hong Kong[8].

29.Third, in applying the proportionality test, in appropriate circumstances, the court would accord a margin of appreciation for the legislature and the executive.  This application of the margin of appreciation is relevant at all stages of the proportionality test, and is a recognition and reflection of the distinct and separate constitutional roles of the judiciary, the executive and the legislature.  In and when duly affording a margin of appreciation, the court generally will not interfere unless the solution or restriction in question is manifestly without reasonable foundation.  See Fok Chun Wa v Hospital Authority[9], per Ma CJ at paragraph 75; Leung Chun Ying v Ho Chun Yan Albert[10], at paragraph 45, per Ma CJ.

30.However, the degree and extent of the margin of appreciation that the court would accord to the discretionary area of judgment of the relevant authority would depend on the subject matter under scrutiny. Where fundamental concepts or core values are said to have been infringed, the courts will be particularly vigilant to protect the right associated with such concepts, and consequently much less leeway or margin of appreciation will be accorded to the authority concerned.  As Ma CJ explained, it is these areas (ie, areas involving core values or fundamental concepts) where the courts have expertise and experience, and it is part of their constitutional duty to protect these values or concepts: Fok Chun Wa, at paragraphs 79, 81 per Ma CJ.

31.Thus, Ribeiro PJ recently in Kong YunMing v The Director of Social Welfare[11] stated again at paragraph 40 that it is in relation to certain fundamental rights such as freedom of expression, freedom of peaceful assembly, or in discrimination cases where the infringements are based on certain personal characteristics (such as race or sex) that the court, in applying the proportionality test, would adopt the “minimal impairment” test and would regard a restriction to be disproportionate unless it goes no further than necessary.

32.The extent, if any, that this court should accord the margin of appreciation for the executive and legislature in the present case forms one of the major contentions between the parties.

33.This is the question that I will now turn to.

C2.  Margin of appreciation in the present case

34.Mr Pun (together with Mr Newman Lam) for the applicant accepts that whether s 39(2A) is constitutional depends on whether the restriction passes the proportionality test.  Counsel also accepts that the court in applying the proportionality test may in certain context accord a wide margin of appreciation to the area of discretionary judgment of the legislature or executive, and the court in scrutinising the restriction would only interfere if the restriction or solution in question is found to be manifestly without reasonable foundation[12].

35.On the other hand, as I mentioned above, where the rights in question involve fundamental societal values or fundamental concepts, much less leeway or margin of appreciation would be accorded to the authority concerned.  In those circumstances, the court will be vigilant to ensure that the proportionality test is satisfied by applying a heightened scrutiny.

36.Mr Pun then further submits that, given that the right to stand for election as guaranteed under BL26 and BOR21 involves such fundamental and core constitutional right, the court should accord no or very limited margin of appreciation to the discretionary judgment of the legislature or the executive in applying the proportionality test in the present case.  In other words, the restriction should be regarded as disproportionate unless it goes no further than necessary.

37.Lord Pannick QC (together with Mr Johnny Mok SC and Mr Abraham Chan) on the other hand submits that the right to stand for election clearly involves political issues and considerations, and in such context, the court should accord a wide margin of appreciation for the legislature and the executive.

38.I am of the view that in the context of the present case, in applying the proportionality test to the challenged restriction, a due margin of appreciation should be accorded to the legislature and the Administration.  I will explain why.

39.In Leung Chun Ying v Ho Chun Yan Albert, supra, one of the issues the Court of Final Appeal is dealing with is whether the absolute seven days time limit for lodging election petitions against the election result of the Chief Executive under the Chief Executive Election Ordinance (Cap 569) unjustifiably infringes (applying the proportionality test) the constitutional right of access to court guaranteed under Article 35 of the Basic Law.

40.The Court of Final Appeal concludes that it does not.  In coming to that conclusion, Ma CJ further states that the court in deciding that question, “a due margin of appreciation should be accorded” to the legislature as elections involve political and policy considerations and it is these areas where the legislature is involved.  The learned Chief Justice explains at paragraph 45 (footnotes omitted) as follows:

“There is also the consideration of the margin of appreciation which can be accorded by the court to the legislature. This aspect has been considered by the courts in a number of cases. In Fok Chun Wa v Hospital Authority, this Court emphasized the point that the concept of margin of appreciation reflected the different constitutional roles of the judiciary on the one hand, and the executive and legislature on the other. In the context of election law, this difference in roles must be borne in mind. I have earlier discussed the role of the judiciary when dealing with the engagement of Article 35 of the Basic Law in the present case. Elections, however, also involve political and policy considerations and it is in these areas where the legislature is involved. The determination that seven days is the appropriate limit for the lodging of election petitions is one that does involve considerations other than legal ones. A due margin of appreciation should be accorded in the present case. Mr Lee SC relied on those passages in Fok Chun Wa in which this Court made references to core values and fundamental concepts, but the right of access to the courts is not an unlimited one, particularly in the present context.” (emphasis added)

41.Thus, even in relation to the fundamental right of access to court[13], and in an area where the courts does have expertise, given that it is not an absolute right, and viewed in the context of election law (which involves political and policy considerations), the learned Chief Justice has held that the court in applying the proportionality test to scrutinise the legislative restriction should still accord a due margin of appreciation to the legislature[14].

42.In the premises, in my view, in a matter as in the present case which involves directly election law (which necessarily involves also political and policy considerations) and also a right which is not an unlimited one, a due margin of appreciation must similarly be accorded to the legislature and the Administration in applying the proportionality test.

43.Further, I accept Lord Pannick’s additional arguments that, in light of the following, the court should have due regard to the discretionary area of judgment of the legislature in deciding whether a statutory restriction passed by the legislature after due public consultation and debate provides a justified limitation of the right to stand for election:

(1)  It has been held that the concept of “law” in the phrase “in accordance with law” in BL26 includes the Basic Law itself and BL68 and Annex I and II[15].

(2)  BL68[16] and paragraph 2 of Part 1 of Annex II to the Basic Law[17] specifically confer upon LegCo the power to enact electoral law which specify the method of electing its members.  LegCo is thus the body designated by the Basic Law to decide on the content of the relevant laws to implement the democratic process.  Their decided views on election law should therefore be accorded with a margin of appreciation under the constitutional model of the Basic Law.

(3)  Further, in a subject matter which involves political and policy considerations, the international authorities also support the approach that an appropriate margin of appreciation should be accorded to the legislature where it is expected that democratically-elected politicians will be particularly sensitive to the measures necessary to safeguard the integrity of the democratic system.  See: R (Animal Defenders International) v Secretary of State for Culture, Media and Sport[18], at 1347-1348 per Lord Bingham; Animal Defenders International v United Kingdom[19], at paragraph 116; A v Secretary for State for the Home Department[20], at p 102E-G per Lord Bingham.

(4)  Similarly, in the context of Article 3 of the First Protocol to the European Convention on Human Rights, which provides that the contracting parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions that will ensure the free expression of the opinion of the people in the choice of the legislature, it has also been held by the Grand Chamber of the European Court of Human Rights[21] that:

(a)  The right to vote and to stand for election are not absolute and there is therefore room for implied limitation, and the Contracting States must be given “a wide margin of appreciation in this sphere”;

(b)  The legality of the limitation depends on whether there has been a lack of proportionality and whether the restriction has interfered with the free expression of opinion of the people;

(c)  The Contracting States enjoy a wide margin of appreciation when it comes to the determination of the type of ballot through which the free expression of the opinion of the people in the choice of legislature is achieved;

(d)  Any electoral legislation subject to the scrutiny of the court in applying Article 3 of the Protocol must be assessed in the light of the political evolution of the country concerned;

(e)  In doing so, the breadth of the discretion is necessary because electoral systems seek to fulfil objectives which are sometimes scarcely compatible with each other: on the one hand to reflect fairly faithfully the opinions of the people, and on the other, to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will.

44.Mr Pun however further contends that s 39(2A) impairs the essence and effectiveness of the rights to stand for election and to vote, and so a margin of discretion does not apply.

45.With respect, I am also not persuaded by this contention:

(1)   As I have emphasised above, the right to stand for election is not an absolute one.  Whether the restriction provided in the impugned provision impairs the “essence and effectiveness” is in fact a question that should be answered after applying each limb of the proportionality test.  One cannot assume this conclusion first and says therefore no margin of appreciation should be accorded.

(2)   In any event, as submitted by Lord Pannick, on the face of it (and before subjecting it to the proportionality test), the challenged provision subjects the right to stand for election to a limited (but not a wide‑sweeping wholesale) exception.  Its application depends on a limited condition (ie, the relevant LegCo Member’s resignation, which is in his or her own control).  Thus, the nature of its impairment of “the essence and effectiveness” of the rights is similar to the other statutory limits on who may stand for election: for example, rules which regulate the age, mental capacity or other characteristics of candidates, or require the payment of a deposit.

46.Mr Pun also seeks to rely on the case of Sauvé v Canada[22] to support the submissions that, when it comes to the right to stand for election, no margin of discretion should be allowed.

47.Sauvé is a case concerning s 51(e) of the Canada Elections Act, which denies the right to vote of a prisoner serving a sentence of two years or more.  It was challenged by the applicant in that case that provision was unconstitutional as it infringed the right to vote guaranteed by the Canadian Charter.  It was held at first instance that the infringement was unjustified and thus unconstitutional.  This was reversed on appeal by the Federal Court of Appeal.

48.On appeal to the Supreme Court, by a majority of 5 to 4, the appeal was allowed and it was held that the provision was unjustified.  As part of the majority decision, McLachlin CJ held, among others, that in deciding whether there was justification of the infringement to the right to vote, the court should not (in disagreement with the minority decision of Gonthier J) accord any deference to the Parliament.  In particular, the learned Chief Justice emphasised the fundamental importance of the right to vote guaranteed by the Charter, which she described as “the corner stone of democracy”, and that the court had always “applied a stringent justification standard” in considering any denials of the voting rights[23].

49.Viewed in that light, Sauvé is distinguishable from the present case and does not assist Mr Pun:

(1)  That case concerns with the right to vote, while the present is about the right to stand for election.  In this respect, it has been held in Wong Hin Wai[24] that stricter requirements can be imposed on eligibility to stand for election as compared with eligibility to vote.  One therefore cannot simply and directly adopt and apply McLachlin CJ’s above reasons as to why no “deference” (or margin of appreciation) to the Parliament should be accorded by the court in scrutinising a statutory restriction on the right to vote to the present restriction on the right to stand for election.

(2)  Further, in the present context, the relevant LegCo Member is only prohibited from standing in a by-election if he chooses to resign.  There is thus no general prohibition of the right to stand for all elections.  It must also be remembered that that resigning LegCo Member, if he chooses to do so, has (in the exercise of his right to stand for election) already been elected once and in the first place through the election process.  He is also entitled to stand for election in any subsequent general elections.

50.For these reasons, I am of the view that in applying the proportionality test in the scrutiny of the statutory restriction in s 39(2A), the court should accord a due margin of appreciation to the legislature[25]. In other words, the court should only interfere if it finds that, upon scrutiny, the restriction is manifestly without justifiable foundation.

51.Bearing this in mind, I now look at the application of each limb of the test.

C3.  Whether there is a legitimate aim

52.In the paper (“the Bills Committee Paper”) submitted to the Bills Committee for the 2012 Bill, the Administration says these at paragraph 15 in support of the constitutionality of s 39(2A):

“15. Applying these principles to the Proposal, DoJ [Department of Justice] is of the view that the Proposal is constitutional as the restriction on the right to stand for election is a reasonable, necessary and proportionate measure in serving a legitimate purpose, namely to deter the practice of a Member resigning in order to trigger a by‑election in which he intends to stand seek to be re-elected:

(a) the Administration has already explained why it considers such conduct to be an abuse of the Member’s power to resign and an abuse of the electoral process, with negative consequences arising, and why this is a mischief which needs to be addressed. See the Consultation Paper on Arrangements for Filing Vacancies in the Legislative Council (‘Consultation Paper) issued by the Constitutional Mainland Affairs Bureau in July 2011. The submissions received by the Administration in response to the public consultation indicate that there is strong public support for the four Options set out in the Consultation Paper, Option 1 receives more support than the other three Options;

(b) under the Proposal, by-elections will continue to be held to fill mid-term vacancies arising in LegCo. The public’s right to vote under BL Article 26 and HKBOR Article 21(b) is not affected. This addresses concerns previously raised by some members of the public that their right to vote should not be restricted because of the mischief;

(c) the restriction on the right to stand for election in a by‑election only applies to a Member who has resigned or is taken to have resigned from office under sections 13 and 14 of the LCO. This is a more targeted response to the mischief, namely the phenomenon of a Member voluntarily resigning in order to trigger a by-election in which he intends to stand and seek to be re-elected;

(d) the restriction only applies to by-elections held in the same LegCo term within 6 months of the effective date of the resignation. In this regard, it may be noted that past experience indicates that a by-election would normally be conducted around 4 months after a mid‑term vacancy arises;

(e) insofar as the Proposal may result in some ‘hard cases’ where a Member chooses to resign for health or other personal reasons or concerns, it is well‑established that the legislature may adopt a general rule which is justifiable, even though it may result in a detrimental effect on individuals in hard cases. Moreover:

(i) the restriction only applies to a Member who has resigned or is taken to have resigned from office under sections 13 and 14 of the LCO. It does not apply to a Member who vacates the office in other circumstances, including BL Article 79(1);

(ii) a Member with a valid reason may apply to the President of the LegCo for consent to be absent from meetings for the purposes of BL Article 79(2). As representatives of the constituents in a democratic society, LegCo Members have important public functions to discharge. The assumption of the office of a Member is a solemn public commitment, and it is expected that a Member would give serious consideration before deciding to resign from office;

(f) the Proposal does not restrict the resigning Member’s right to stand in any subsequent general election, even if it is held within 6 months of his resignation. Nor would the resigning Member be prevented from standing in any subsequent by-election held in the next LegCo term.” (emphasis added)

53.Thus, the legitimate purpose put forward by the Administration was to “deter the practice of a Member resigning in order to trigger a by‑election in which he intends to stand and seek to be re‑elected” (emphasis added).

54.Premised on this, Lord Pannick further submits that the legitimate aim served by the measure is thus for the improvement of the fair and effective working of the electoral system.  It was (it is said) legitimate for the Administration and the LegCo to consider putting in measures to address the following concerns that would affect the credibility and effective working of electoral system:

(1)   Constituents were deprived of a representative during the period between the resignation and the by-election, and LegCo was deprived of a LegCo Member during that period;

(2)   The by-elections involved the incurring of significant amounts of public expenditure and an unnecessary drain on public resources.  As the evidence shows, the costs incurred in organising the 2010 LegCo by-elections is of approximately $126 million.

(3)   If such by-election triggered by a voluntary resignation of the LegCo Members were to become a more common occurrence, the integrity, respect and credibility of the electoral process would be undermined.  This is underlined by the record low voter turnout in the 2010 by-election.

55.Mr Pun for the applicant on the other hand submits that the restriction does not serve any legitimate aim.  His submissions can be summarised as follows:

(1)   The essence of an electoral system is to “guarantee and give effect to the free expression of the will of the electors”.

(2)   For that purposes, as stated at paragraphs 15, 17 and 21 in the General Comment No 25 adopted by the UN Human Rights Committee on 12 July 1996 (on Article 25 of the ICCPR), the effective implementation of the right and opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates.  Thus, any restriction on the right to stand for election “must be justifiable on objective and reasonable criteria”.  Persons who are otherwise eligible to stand for election should not be excluded by, among others, reason of political affiliation or his political opinion.

(3)   As the background leading to the passing of the impugned provision shows, it is because of the political opinion of the resigning LegCo Members which triggered the by-elections in 2010 that has caused the Administration to seek to impose restriction on the right to stand for the by-elections in the first place.

(4)   It is thus an unreasonable restriction based on political opinion.

(5)   Moreover, the above three consequences set out in the Bills Committee Paper are inherent in any resignation resulting in a by-election.  If the resignation is for a legitimate reason, it cannot be regarded as an abuse simply because of these inherent consequences.  There therefore cannot be a legitimate aim to seek to address these inherent consequences following from a by-election.  This is particularly so when (as recognised by the Administration itself) it is possible that there could be circumstances where it may be appropriate for a LegCo Member to resign for the purpose of submitting himself to the electorate in a by-election so they can decide whether they wish to continue to be represented by that LegCo Member[26].

(6)   In any event, given that the restriction under the challenged provision applies to a LegCo Member who resigns for any reasons, it is simply too wide and is not targeted solely at the mischief identified by the Administration.  It therefore impairs the essence and effectiveness of the rights to stand for election and to vote.  It cannot be said to serve a legitimate purpose.

56.I am unable to agree with the applicant’s contentions.

57.First, to improve the fair and effective working of the electoral system must by itself a legitimate aim to be served by a statutory provision, if it does serve that purpose.  The applicant is not in my view saying that that by itself is not a legitimate purpose.

58.Second, I think Mr Pun seems also to suggest that the above legitimate aim (ie, to improve the fair and effective working of the electoral system) now put forward by Lord Pannick is not the same one set out in the Bills Committee Paper[27], which (as I have quoted above) stated that the legitimate aim was to “deter the practice of a Member resigning in order to trigger a by-election in which he intends to stand and seek to be re-elected”.  Mr Pun therefore appears to suggest that the “improvement aim” was not the legitimate aim relied on by the Administration in introducing the restriction in s 39(2A), while the “deterrence aim” as stated in the Bills Committee Paper could not constitute a legitimate purpose for reasons of his above submissions.

59.In my view, the “deterrence aim” stated at paragraph 15 of the Bills Committee Paper must be read in the context of that paper as whole.

60.At paragraph 15(a), the paper refers specifically to what the Administration considered as the abuse and negative consequences (thus the mischief) arising from a LegCo Member voluntarily resigning to trigger a by‑election in which he intended to stand for election again as contained in the Consultation Paper.

61.The said abuse and negative consequences set out at paragraphs 1.02 to 1.05 of the Consultation Paper are those as summarised at paragraph 54 above, which Lord Pannick relies on to support his submissions on the legitimate aim to improve the electoral system.

62.Moreover, at paragraph 22 of the Bills Committee Paper, it also set out Lord Pannick’s advice[28] on whether the proposed restriction served a legitimate aim.  The paragraph says as follows:

“Whether the Proposal pursues a legitimate aim

22. With regard to whether the phenomenon of a Member resigning in order to trigger a by-election in which he/she intends to stand and seek to be elected is a mischief, Lord Pannick QC advised that:

‘(1) The Administration and LegCo are entitled to regard it as an abuse of the power of a Member to resign for him to do so in order to provoke a by-election in which the Member intends to stand and seek re-election. The Administration is entitled to regard this as an abuse because it will inevitably mean that the constituents are deprived of a representative during the period between resignation and the by-election; LegCo will be deprived of a Member during that period; the by-election will involve costs to public funds; and if such resignations to trigger by-elections become a common occurrence, respect for the electoral process will be undermined, particular when (as occurred in 2010) such a device will lead to a low turnout in the by-election.

(2)  The fact that it is not unknown for a Member of the legislature in other countries to resign in order to trigger a by-election (for example David Davis MP in the Westminster Parliament in 2008) does not prevent the Administration from regarding such a practice as a mischief to be addressed in Hong Kong.’”

63.Once the Bills Committee Paper is read as whole and in such a way as discussed above, I am satisfied that the “deterrence aim” and the “improvement aim” are in effect connected and the same, in that it is the aim of s 39(2A) to deter a LegCo Member from resigning voluntarily in order to trigger a by-election (in which he intends to stand for election) so as to improve the fair and effective working of the electoral system.

64.Third, I do not accept Mr Pun’s submissions that the concerns (or consequences) that “there is an unnecessary drain on public resources” and that the integrity, respect and credibility of the electoral process would be undermined by reason of a more common occurrence of LegCo Members resigning voluntarily in order to trigger a by-election are necessarily inherent in any by-elections.  The underlying focus that leads to these concerns is that the member resigns in order to trigger the by‑election.  This is different and distinguishable from the fact that a by‑election would naturally ensue as a result of a LegCo Member’s resignation.  Understood as such, it is in my view within the spectrum of reasonableness that one may regard the conduct or act of a LegCo Members who resigns voluntarily in order to trigger a by-election as an abuse of and having a negative effect on the working of the electoral system, which would further lead to less respect and faith in the system.

65.Similarly, I agree with the respondent that the aim does not cease to be a legitimate one because some people may reasonably take the view that there are advantages in allowing a LegCo Member to resign (and to seek re-election) for reasons such as he has changed his party allegiance, or take a stance on a controversial issue, or is involved in a scandalous conduct. This may be relevant to the question of whether the restriction is rationally connected to the aim and a proportionate one, but does not render the aim to improve the working of the electoral system not a legitimate one.

66.Finally, I also do not agree that the aim in effect seeks to impose restriction based on political opinions.  As a matter of background, it is correct to say that the LegCo Members’ resignation in 2010 was related to certain political stance.  But it does not follow that the restriction now comes under the challenged provision is one based on political opinions per se.  As the applicant himself submits, the restriction for not allowing a resigning LegCo Member to stand for the ensuing by‑election does not distinguish between or depend on the reasons for the resignation: as long as a member resigns and a by-election is to be held within the next six months, he would not be able to stand for that election.  The resigning LegCo Member is caught by the restriction because of the voluntary resignation, not the reasons behind the resignation.  The fact that there may be occasions that a LegCo Member resigns to assert or express a particular political view or opinion is neither here nor there.

67.For these reasons, I am satisfied that the respondent has shown that there is a legitimate aim to be served by the impugned provision.

68.The applicant also relies on some of his above submissions to support his attack on the second and third limbs of the proportionality test.  Insofar as necessary, I would look at those submissions again under those questions.

C4.  Whether there is a rational connection

69.The respondent submits that the rational connection between the restriction and the legitimate aim is that, with the restriction, it is less likely that a LegCo Member would resign voluntarily in order to trigger a by‑election.  Lord Pannick emphasises that it must be within the margin of appreciation that LegCo and the Administration are entitled to believe that this is so.

70.The applicant however contends that the respondent cannot show the necessary rational connection since another member of the political party of the resigning LegCo Member may stand in the relevant by‑election.

71.It may well be the case that another party member of the resigning LegCo Member would stand for election in the by-election.  However, that does not remove the above rational connection that it is less likely that a LegCo Member would do that.  It must be noted that the rational connection is not that the restriction would completely prevent or remove the chance of the concerned conduct from happening at all.  In this respect, it is pertinent to note that the LegCo Member who may be thinking about resigning is the one (not any other member of his party, if there is one) who has been elected by the electorate to represent them in the LegCo in the first place.  In an election, it is not unreasonable to believe that, in addition to the factors of party affiliation and political platform, the electorate (or at least part of the electorate) would or may take into consideration other factors such as their chosen candidate’s personal flair, characteristics, past services and performances in deciding to vote for him.  In other words, an incumbent LegCo Member who intends to resign in order to trigger a by-election, but who could not stand for that election, may have to take into consideration the likely possibility of whether another member of his party may get elected before deciding to do so or not.  This in turn may reasonably make him think twice before deciding whether or not to resign in order to trigger the by‑election.

72.I therefore agree that, given that the aim is to deter a LegCo Member from resigning to trigger a by-election in which he intends to stand for election, it is at least reasonable and logical to accept or believe (if it is not obvious) that the restriction would make it less likely for such a LegCo Member to resign in order to trigger the by-election where he could not run for election.

73.Mr Pun also argues that there is no rational connection because the Administration was not targeting at “resignation in order to seek re-election” itself.  This is so since the Administration itself recognised[29] that one can envisage circumstances in which it may be appropriate for a LegCo Member to resign for the purpose of submitting himself to the electorate in a by-election so that they can decide whether they wish to continue to be represented by him.  Counsel therefore submits that the “mischief”, if any, does not lie with “resignation in order to seek re-election” per se.  The Administration has therefore also failed to formulate the exact alleged “mischief” arising from it.

74.I do not think Mr Pun is correct to say that the restriction is not targeted at “resignation in order to seek re-election”. As stated at paragraph 15 of the Bills Committee Paper (as quoted at paragraph 52 above), the restriction is to “deter the practice of a Member resigning in order to trigger a by‑election in which he intends to stand and seek to be re‑elected” (my emphasis).  Further, as I have also mentioned earlier, the “mischief” relied on by the Administration are those that I have summarised at paragraph 54 above.  Applying a due margin of appreciation, I am satisfied that the Administration has identified the necessary mischief of which the restriction is proposed to address.  I further repeat my observations at paragraph 64 above.

75.Further, it is correct that views may reasonably be held that it may be appropriate for a LegCo Member to resign for the purpose of submitting himself to the electorate in a by-election so that they can decide whether they wish to continue to be represented by him.

76.But for the same reasons I have set out at paragraphs 71 and 72 above and paragraphs 90 to 93 and 95 to 97 below[30], that by itself does not remove the rational connection that the restriction would make it less likely for a LegCo Member to resign voluntarily in order to trigger a by‑election.

77.I am therefore satisfied that the respondent has demonstrated the rational connection between the restriction and the aim.

C5.  Whether it is a proportionate restriction

78.The respondent submits that s 39(2A) is proportionate as the restriction is relatively limited in time and in scope, and at the same time still gives the electorate the right to elect someone of their choice to fill the vacancy.  In particular, it is submitted that the restriction cannot be said to be manifestly without reasonable foundation since:

(1)  LegCo and the Administration were entitled to regard the mischief identified as requiring a legislative response.  This is particularly so as the matter had been subject to a public consultation.  This is a matter which involves also political debate, on which different views may fall within a wide spectrum of reasonableness.

(2)  A LegCo Member who has been elected is not required to stand down before the end of his or her term, unless he or she intends to resign resulting in a by-election.  He or she is fully aware of those consequences.

(3)  A six month period is long enough to deter resignations designed to allow the LegCo Member to stand in the by‑election but not so long that it unreasonably prevents a LegCo Member from standing again if circumstances alter.  The six month period was adopted because past experience indicated that a LegCo by-election would normally be conducted four months after a mid-term vacancy arises.  The option of restricting participation by a resigning LegCo Member in any by-election in the same LegCo term was in fact not adopted[31].

(4)  A vacancy arising from a LegCo Member’s resignation would continue to be filled by means of a by-election.  Another candidate from the same party of political affiliation as the resigning LegCo Member would be able to stand for election.

(5)  The six month prohibition would only apply to by-elections in the same LegCo term.

79.On the other hand, Mr Pun advances a number of reasons as to why the restriction is not proportionate.  I will deal with them in turn.

80.First, counsel submits that, as the restriction is not targeting at “resignation in order to seek re-election” per se, the Administration has failed to identify the “mischief” to be addressed by this restriction.

81.These are the same submissions counsel has made under the question of rational connection which I have summarised at paragraph 73 above.  For the same reasons I have set out earlier at paragraph 74, I would reject the argument.

82.Second, Mr Pun says apart from the fact that there can be legitimate reasons for a LegCo Member to resign to seek re-election, there are also many examples where he may resign initially not for the purpose of re-election but later elects to stand in the by-election due to a change of circumstances[32].

83.Mr Pun therefore says the blanket restriction is too wide (and thus disproportionate) as it is to use a sledgehammer to crack a nut the size of which was not even identified.

84.In support of his submissions, counsel further relies on the analogy given by Lord Wilson in R (Aguilar Quila) v Home Secretary[33] at paragraph 58.

85.In R (Aguilar Quila), the UK Supreme Court was asked to examine Rule 277 (“Rule 277”) of the Statement of Changes in Immigration Rules, which provides that in the absence of exceptional, compassionate circumstances, a marriage visa should not be granted until both the sponsor and the applicant had attained the age of 21.

86.In that case:

(1)   It was argued that Rule 277 was incompatible with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, mainly because raising the age of sponsorship to 21 would be “detrimental” and, in particular, “discriminatory on racial and ethnic groups and with regard to arranged and love marriages”[34].

(2)   It was noted that “[t]here was no attempt in the [Secretary of State’s report entitled Marriage Visas: The Way Forward] to explain why the Secretary of State had concluded that the increase would indeed be proportionate in the light of its effect on those who entered into marriages which were not forced and of whom at least one was aged between 18 and 21.  There was no attempt to even address the size of that constituency”[35].

87.It is for these reasons (among others) that Rule 277 was found to be “a blunt instrument” that was over-intrusive and therefore its interference with the rights of the claimants under article 8 of the ECHR was unjustified.  In relation to this, Lord Wilson said at paragraph 58 of the judgment as follows:

“I would, in conclusion, acknowledge that the amendment is rationally connected to the objective of deterring forced marriages. So the Secretary of State provides a satisfactory answer to question (b) set out in para 45 above. But the number of forced marriages which it deters is highly debatable. What seems clear is that the number of forced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters. Neither in the material which she published prior to the introduction of the amendment in 2008 nor in her evidence in these proceedings has the Secretary of State addressed this imbalance – still less sought to identify the scale of it. Even had it been correct to say that the scale of the imbalance was a matter of judgment for the Secretary of State rather that for the courts, it is not a judgment which, on the evidence before the court, she has ever made. She clearly fails to establish, in the words of question (c), that the amendment is no more than is necessary to accomplish her objective and, in the words of question (d), that it strikes a fair balance between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages. On any view it is a sledge-hammer but she has not attempted to identify the size of the nut. At all events she fails to establish that the interference with the rights of the claimants under article 8 is justified.” (emphasis added)

88.Baroness Hale agreed with Lord Wilson and also said at paragraph 79 as follows:

“This scheme shares all three characteristics. The delay on entry is not designed to detect and deter those marriages which are or may be forced. It is a blanket rule which applies to all marriages, whether forced or free. And it imposes a delay on cohabitation in the place of their choice which may act as at least as sever a deterrent as a large fee. I say this, not to conclude that there has been a violation of these couples’ right to marry. They have in fact both been able to get married, one in England and one in Pakistan. But these factors lend weight to the conclusion that it is disproportionate and unjustified interference with the right to respect for family life to use that interference for the purpose of impeding the exercise of another and even more fundamental Convention right in an unacceptable way.”

89.With respect, I am equally not persuaded by Mr Pun’s above submissions.

90.It is now well established that in subjecting a challenged statutory restriction to scrutiny, and where due margin of appreciation is to be accorded to the relevant authority (say the legislature in the present case), the court readily recognises that the legislature may adopt a general rule even though it will or may have hard cases where a detrimental effect on individuals may arise.  The fact that there may be hard cases that can be caught by the drawing of the line, and that there may possibly be other alternatives as to where and how that line should be drawn does not necessarily make the challenged restriction disproportionate and thus unlawful.  As said by Lord Bingham in Animal Defenders International, supra, at paragraph 33:

“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 held to invalidate the rule if, judged in the round, it is beneficial.”[36]

91.This approach has been followed and reaffirmed repeatedly by the Court of Final Appeal in Fok Chun Wa, at paragraph 71 and more relevantly (in the context of election law) in Leung Chun Ying at paragraph 49.

92.This is particularly so in a case (as in the present) where whether the restriction (or measure) proposed should be adopted to address the mischief involves clearly political and policy considerations.

93.The present restriction had been subject to debate in LegCo, where different political parties are represented and different views (including the views as now submitted by the applicant above) as to the appropriateness of the restriction to address the mischief had been channelled in the debate.  The debate resulted in s 39(2A).  In such a context, as I have said above, the proper place to resolve this political issue is LegCo and not the court, unless the court comes to the view that the restriction is manifestly without reasonable foundation.  As also said by Lord Bingham in A v Secretary for the State for the Home Department [2005] 2 AC 68 at p 102E-G:

“The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions.”

94.Further, the authority of R (Aguilar Quila) does not assist the applicant and is distinguishable from the present case:

(1)   The case concerns a challenge to the proportionality of immigration rule.  Lord Wilson adopted (at paragraph 46) Lord Bingham’s approach stated at paragraph 17 of Huang v Secretary for State for the Home Department[37] in assessing proportionality in the context of immigration rule.

(2)   In Huang, the Secretary of State asked the court to give a broad margin of discretion to immigration rule as it did to housing legislation.  Lord Bingham rejected that on the basis that housing legislation was as a result of active Parliamentary debate (where competing interest were fully represented), while the subject immigration rule was not. In other words, what Lord Bingham was saying is that where a legislative restriction is the product of active debate in the legislature and where competing interests are represented, the court would give wide margin of appreciation to the legislature final view[38].

(3)   Thus, Lord Wilson did not accord a wide margin of appreciation to the Parliament in assessing whether Rule 277 was a proportionate measure, but instead applied the test of whether the amendment was “no more than necessary” to accomplish the objective.

(4)   I therefore accept Lord Pannick’s submissions that, like housing policy and unlike immigration rules in the United Kingdom, s 39(2A) is the result of active and full debate in LegCo where competing interests were presented.  In the circumstances, the court will give a due margin of discretion to the legislature and will be slow to interfere unless it is of the view that the restriction is beyond reasonable foundation.

(5)   Finally and in any event, for the reasons I have given above, I am satisfied that the Administration has properly identified the mischief that it intends to address by the restriction.  Thus, also unlike R (Aguilar Quila), the “size of the nut” has been defined in the present case, of which it is possible to assess whether the “hammer” used to address it is disproportionate after giving a due margin of appreciation to the discretionary judgment of LegCo.

95.Third, Mr Pun says the Administration has not provided any reasons to show why it should not leave the choice to the good sense and judgment of the electorate in Hong Kong in the by-election to address the “mischief” in the exercise of their votes.  Counsel says, in that sense, the existing by-elections system provides a sufficient machinery to address the “mischief”.

96.Mr Pun’s submissions amount to no more than saying that there exists an equally or perhaps even more reasonable way of addressing the “mischief”.

97.The respondent accepts fairly that these views may reasonably be held.  However, for the same reasons I have set out in paragraphs 90 to 93 above, it does not then follow that the legislative restriction is manifestly without reasonable foundation or beyond the range of reasonableness.

98.Finally, Mr Pun repeats his earlier submissions that s 39(2A) impairs the essence and effect of the right to stand for election.

99.For the same reasons I have set out at paragraph 45 above and the respondent’s submissions set out at paragraph 78 above (which I also accept), I reject this contention.

100.In the premises, in light of the reasons set out at paragraph 78 above, and after giving a due margin of appreciation to the legislature, I do not find the restriction under s 39(2A) as a legislative response to LegCo Members resigning in order to trigger a by-election, in which they intend to stand, to be manifestly without reasonable foundation.

101.I am therefore satisfied that the restriction is a proportionate one to achieve the legitimate aim.

D.  CONCLUSION

102.For all the above reasons, I find s 39(2A) of the LCO to be compatible with the right to stand for election guaranteed under BL26 and BOR21.

103.I would therefore dismiss this judicial review application.

104.I further make an order nisi that costs of the application be to the respondent, to be taxed if not agreed, with certificate for three counsel.  Unless any of the parties applies to vary it by summons, the order shall become absolute 14 days from today.  The applicant’s own costs be taxed in accordance with legal aid regulations with certificate for two counsel.

105.Lastly, I thank counsel for their assistance.

Mr Hectar Pun and Mr Newman Lam, instructed by Messrs Ho Tse Wai, Philip Li & Partners, for the applicant

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