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Reconstitutionalizing Politics in the Hong Kong Special Administrative Region of China

  • Swati JHAVERI (a1)
Abstract

The question of whether constitutional law can protect, consolidate, and advance democracy has been considered extensively in multiple jurisdictions. The issue has not yet been considered in the context of one of the most problematic contemporary democratic transitions: Hong Kong’s, from an externally governed colonial outpost to a self-governed suffrage-based special administrative region of the People’s Republic of China. The Basic Law of Hong Kong proposes the eventual election of the Legislative Council and Chief Executive of Hong Kong by some form of universal suffrage. These provisions are at the core of the ‘democratic constitution’ of Hong Kong. Achieving this goal requires consensus between the executive in Hong Kong, members of the Legislative Council in Hong Kong, and the legislative body of the People’s Republic of China. Although not a formal constitutional requirement, any democratization efforts will also require popular buy-in from Hong Kong residents in order to function effectively. However, it is increasingly clear that the views of all concerned do not converge on how and when these constitutional aspirations should be realized. In addition, all parties have started moving outside of this constitutional framework when deliberating issues of political reform. This article looks at the problems in the constitutional design of the Hong Kong Special Administrative Region that have resulted in this political deadlock. The article will then look at one solution to mitigate the effect of these design issues and to move forward again on the issue of reform: ‘litigating’ the democratic constitution in the courts. The article discusses the advantages of the courts in the process: primarily the capacity of the courts to reconstitutionalize political debate on electoral issues. This article evaluates the largely unsuccessful use of the courts thus far by Hong Kong residents to correct and advance political reform. It considers possible reasons for the high failure rate in courts and proposes alternative litigation strategies that can better utilize the position of the courts to re-orient all parties to the Basic Law.

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Assistant Professor, Faculty of Law, National University of Singapore. I would like to thank the Centre for Asian Legal Studies for their support to attend the Annual Conference of the International Society of Public Law in Berlin in 2016 where an earlier version of this paper was presented; and Simon Young, Eric Ip, Cora Chan, Michael Ramsden and Po Jen Yap for their comments on this article. All errors remain my own.

Footnotes
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1. See Davis, Michael C., Constitutional Confrontation in Hong Kong: Issues and Implications of the Basic Law (St Martin’s Press, 1990), especially 2729 .

2. Basic Law, arts 45 and 68.

3. Ibid.

4. ibid.

5. Annex II, Part III and Annex I, para 7, Basic Law.

6. Section I (A) discusses the problematic distinction between ‘decisions’ and ‘interpretations’ by the NPCSC.

7. See Chen, Albert HY, ‘The Law and Politics of the Struggle for Universal Suffrage in Hong Kong 2013–15’ (2016) 3 Asian Journal of Law and Society 189 ; and Davis, Michael C, ‘Promises to Keep: The Basic Law, the “Umbrella Movement,” and Democratic Reform in Hong Kong’ in Mahmood Monshipouri (ed), Information Politics, Protests, and Human Rights in the Digital Age (CUP 2016) 239266 .

8. See generally Chan, J J and Lim, CL (eds), The Law of the Constitution of Hong Kong (Sweet & Maxwell 2011) for a discussion of these cases.

9. See Ginsburg, Tom, ‘Courts and New Democracies: Recent Works’ (2012) 37 Law and Social Inquiry 720 for a discussion of ‘downstream’ and ‘upstream’ roles for the courts. See also Issacharoff, Samuel, ‘The Enabling Role of Democratic Constitutionalism: Fixed Rules and Some Implications for Contested Presidential Elections’ (2003) 81 Texas Law Review 1985, 19851986 and Yap, Po Jen, Courts and Democracies in Asia (CUP 2017).

10. This is mirrored in Article 21 of the Bill of Rights Ordinance (c 383) 1991 (BORO) as incorporated in the Basic Law via Article 39. The government continues to rely on a 1976 reservation by the British Government to the International Covenant on Civil and Political Rights (ICCPR) (which BORO incorporates) – ‘the right not to apply article 25(b) in so far as it may require the establishment of an elected Executive or Legislative Council in Hong Kong.’ Article 39 of the Basic Law states that ‘[t]he provisions of [the ICCPR] as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.’ (emphasis added) Some read this to indicate that this includes the pre-1997 reservations. For a discussion of these issues see Ghai, Yash, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (Hong Kong University Press 1999) 406409 .

11. Interpretation by the Standing Committee of the National People’s Congress of Article 7 of Annex I and Article III of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Eighth Session of the Standing Committee of the Tenth National People’s Congress, 6 April 2004), <www.blis.gov.hk/blis_ind.nsf/CurAllEngDoc/E6EBECD7F6384417482575EE000E1080?OpenDocument> accessed 4 September 2017.

12. It has been argued that such augmentation is legitimate in the context of China’s civil law system, where legislative interpretation by the NPCSC of domestic statutes can include clarification or supplementation of laws and that the Basic Law is indeed ‘legislation’ under art 67 of the Constitution of the People’s Republic of China amenable to such ‘interpretation’: Director of Immigration v Chong Fung Yuen [2001] 4 HKCFAR 211, 222J–223A. On this, see Simon Marsden, ‘Constitutional Interpretation in Hong Kong: Do Common Law Approaches Apply When the National People’s Congress Standing Committee Interprets the Basic Law?’ (2006) LAWASIA Journal 99.

13. Standing Committee of the National People’s Congress (NPCSC), ‘Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region in 2007 and for Forming the Legislating Council of the Hong Kong Special Administrative Region in 2008’ (Adopted at the Tenth Session of the Twelfth National People’s Congress, 26 April 2004), <www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383886.htm> accessed 4 September 2017.

14. Chief Executive of the HKSAR, ‘Report on Whether There is a Need to Amend the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region in 2007 and for Forming the Legislative Council of the Hong Kong Special Administrative Region in 2008’ (Report to the Standing Committee of the National People’s Congress, 15 April 2004), <www.basiclaw.gov.hk/en/materials/doc/2004_04_15_e.pdf> accessed 5 September 2017. Interestingly, the report from the Chief Executive stated:

In examining the direction and pace of its constitutional development, [we] must pay heed to the views of the Central Authorities… Amendments to the design and principle of the political structure…must not be lightly contemplated… [and]must aim at consolidating the executive-led system…and must not deviate from this principle of design… when considering the actual situation, public opinions, as well as other factors, including the legal status of the HKSAR, the present stage of constitutional development, economic development, social conditions, the understanding on the part of the public of “One Country, Two Systems” and the Basic Law, public awareness on political participation, the maturity of political talent and political groups, as well as the relationship between the executive authorities and the legislature, must be taken into account… any proposed amendments must enable different sectors of society to be represented in the political structure, and to participate in politics through various channels… any proposed amendments must not bring about any adverse effect to the systems of economy, monetary affairs, public finance.

15. NPCSC (n 13).

16. Namely that reform be based on the ‘actual’ situation in Hong Kong and be ‘gradual and orderly’. See also Tai, Benny, ‘One Principle…Two Principles…3, 4, 5, 6, 7, 8, 9 Factors for Constitutional Reform’ in Johannes Chan and Lison Harris (eds), Hong Kong’s Constitutional Debates (Hong Kong Law Journal 2005) 1527 .

17. Standing Committee of the National People’s Congress (NPCSC), ‘Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issues Relating to Universal Suffrage’ (Promulgated by the Standing Committee of the National People’s Congress on 29 December 2007), <www.legco.gov.hk/yr07-08/english/panels/ca/papers/ca0121-ppr071229-e.pdf> accessed 4 September 2017.

18. ibid.

19. ibid.

20. The existence of ‘functional’ constituencies (industry versus geographical sectors) is one of the most problematic aspects of the Hong Kong political system and is discussed in Section II(C)(2).

21. See Chen, Albert HY, ‘An Unexpected Breakthrough in Hong Kong’s Constitutional Reform’ (2010) 40 Hong Kong Law Journal 259 for a discussion of this reform exercise.

22. Standing Committee of the National People’s Congress (NPCSC), ‘Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016’ (Adopted at the Tenth Session of the Standing Committee of the Twelfth National People’s Congress, 31 August 2014), <www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc23.pdf> accessed 4 September 2017. For a discussion of the issues surrounding the proposals coming out of the 2014 decision, see Young, Simon NM, ‘Realising Universal Suffrage in Hong Kong after the Standing Committee’s Decision’ (2014) 44 Hong Kong Law Journal 689 .

23. This Report was done at a volatile time and the NPCSC thus commented on the report itself:

The Session is of the view that the report complies with the requirements of the Hong Kong Basic Law, the Interpretation by the Standing Committee of the National People’s Congress of Article 7 of Annex I and Article III of Annex II to the Hong Kong Basic Law and the relevant Decisions of the Standing Committee of the National People’s Congress, and reflects comprehensively and objectively the views collected during the public consultation; and is thus a positive, responsible and pragmatic report. (NPCSC, ibid)

The legitimacy of the content of the report was the subject of a challenge in judicial review proceedings (as further discussed in Section II(A) below).

24. NPCSC, ibid.

25. Standing Committee of the National People’s Congress (NPCSC), ‘Explanations on the Draft Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016’ (Adopted at the Tenth Session of the Standing Committee of the Twelfth National People’s Congress, 27 August 2014), <www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc24.pdf> accessed 4 September 2017.

26. This was possible because a large group of ‘pro-China’ legislators were absent during the vote – the reasons for their last minute walk out and absence remain unclear (see Jeffie Lam, ‘Inside the Legco walkout: how pro-establishment lawmakers used opponents’ own tactics to turn the tables’ South China Morning Post (Hong Kong, 19 October 2016) <www.scmp.com/news/hong-kong/politics/article/2038382/hong-kong-pro-establishment-lawmakers-turn-tables> accessed 4 September 2017.

27. See Chan, Johannes MM et al (eds), Hong Kong’s Constitutional Debate: Conflict Over Interpretation (Hong Kong University Press 2000).

28. There are instances where it is responding to a particular situation (eg the NPCSC’s interpretation on the mode of calculating the duration of the term of office of a Chief Executive following the early resignation of the first Chief Executive of Hong Kong), or a particular request (from, for example, the Chief Executive). However, it has not considered these triggers to be the requirements before issuing the interpretations discussed above in Section I(A).

29. For this discussion of the meaning of ‘constitutional’ to identify ‘constitutional statutes’, see Ahmed, Farrah and Perry, Adam, ‘Constitutional Statutes’ (2017) 37 Oxford Journal Of Legal Studies 461 ; Elliott, Mark, ‘Constitutional Legislation, European Union Law and the Nature of the United Kingdom’s Contemporary Constitution’ (2014) 10 European Constitutional Law Review 379 ; Khaitan, Tarunabh, ‘“Constitution” as a Statutory Term’ (2013) 129 Law Quarterly Review 589 ; Feldman, David, ‘The Nature and Significance of “Constitutional” Legislation’ (2013) 129 Law Quarterly Review 343 .

30. The only explicit obligation on the NPCSC is that, in issuing an interpretation, it must consult its committee for the Basic Law.

31. Ng Ka Ling v Director of Immigration [1999] 1 HKLRD 315 [30]–[31] (Court of Final Appeal) (on the classification and necessity conditions).

32. Democratic Republic of the Congo & Ors v FG Hemisphere Associates LLC [2011] 14 HKCFAR 95, [84] (Bokhary PJ), [398] and [404] (Chan and Ribeiro PJJ and Sir Anthony Mason NPJ), [521] (Mortimer NPJ); Vallejos Evangeline Banao v Commissioner of Registration & Anor [2013] 2 HKLRD 533 (Court of Final Appeal). See also the articles in Volume 41, Issue 2 of the Hong Kong Law Journal (2011) for discussions of the Congo Case.

33. As was clarified by the majority judgment in Congo (ibid) [398].

34. See also a recent article: Young, Simon NM, ‘Judicial Review of Elections In Hong Kong: Resolving a Contradiction’ in Po Jen Yap (ed), Judicial Review of Elections in Asia (Routledge 2016) 1137 ; Chan, Cora, ‘State Immunity: Reassessing the Boundaries of Judicial Autonomy in Hong Kong’ [2012] Public Law 601 and Chan, Cora, ‘Reconceptualising the Relationship Between the Mainland Chinese Legal System and the Hong Kong Legal System’ (2011) 6 Asian Journal of Comparative Law 1 .

35. The concern being that there could be retaliation against strong judicial review. See Yap (n 9) chs 1 and 12 and Gardbaum, Stephen, ‘Are Strong Constitutional Courts Always a Good Thing for New Democracies?’ (2015) 53 Columbia Journal of Transnational Law 285, 289 .

36. Oaths and Declarations Ordinance (c 11) 2017.

37. The Chief Executive of the Hong Kong Special Administrative Region & Another v The President of the Legislative Council, HCAL 185/2016, 18 October 2016 (Court of First Instance).

38. Standing Committee of the National People’s Congress (NPCSC), ‘Interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China by the Standing Committee of the National People’s Congress’ (Adopted by the Standing Committee of the Twelfth National People’s Congress at its Twenty-fourth Session, 7 November 2016), <www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc25.pdf> accessed 4 September 2017, confirming the Chief Executive and Secretary Of Justice’s position. See Cora Chan ‘How Hong Kong’s Courts Interpret Beijing’s Interpretation of the Basic Law May Yet Surprise’ South China Morning Post (Hong Kong, 10 November 2016) <www.scmp.com/comment/insight-opinion/article/2044385/how-hong-kongs-courts-interpret-beijings-interpretation> accessed 22 August 2017.

39. Yap (n 9) ch 12 (relying on Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, 222G–H (Li CJ)).

40. See Hogg, Peter W, ‘Canada: From Privy Council to Supreme Court’ in Jeffrey Goldsworthy(ed), Interpreting Constitutions: A Comparative Study (OUP 2006) 8293 for a summary of the main approaches to constitutional interpretation.

41. See Chan (n 38).

42. Following Ng Ka Ling (n 31), where the Court of Final Appeal asserted such a role for itself. This has not been directly challenged or undermined and some academics argue is still a possible role for the Hong Kong courts: see Cora Chan, ‘The Legal Limits on Beijing’s Power to Interpret Hong Kong’s Basic Law’ (HKU Legal Scholarship Blog, 3 November 2016) <http://researchblog.law.hku.hk/2016/11/cora-chan-on-legal-limits-of-beijings.html> accessed 22 August 2017.

43. Kesavananda Bharati v State Of Kerala [1973] AIR SC 1461 (Supreme Court of India) and Minerva Mills v Union Of India [1980] AIR SC 1789 (Supreme Court of India). Singapore has a more muted version of the doctrine: Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1158; Harding, Andrew J, ‘Does the “Basic Structure Doctrine” Apply in Singapore’s Constitution? An Inquiry into Some Fundamental Constitutional Premises’ in Jaclyn L Neo (ed), Constitutional Interpretation in Singapore: Theory and Practice (Routledge 2016). See also Swati Jhaveri, ‘Recent Judicial Comments on the Basic Structure of the Constitution’ (Singapore Public Law Blog, 20 April 2016) <https://singaporepubliclaw.com/2016/04/20/recent-judicial-comments-on-the-basic-structure-of-the-constitution/> accessed 22 August 2017.

44. See (n 37) [20]–[22].

45. ibid [23].

46. Chief Executive of the Hong Kong Special Administrative Region & Another v The President of the Legislative Council [2016] 6 HKC 541(Court of Appeal) [52]–[59].

47. Chief Executive of the Hong Kong Special Administrative Region & Another v The President of the Legislative Council, FAMV Nos. 7, 8, 9 and 10 (1 September 2017) (Court of Final Appeal).

48. ibid [36].

49. ibid [37].

50. ibid.

51. This article does not look at peripheral challenges to aspects of the electoral system that are not part of the broader aspirations of arts 45 and 68. These include, for example, challenges to restrictions on prisoner voting rights (Chan Kin Sum Simon v Secretary For Justice [2009] 2 HKLRD 166 (Court of First Instance)) and restrictions on voting in local village elections (Secretary for Justice & Others v Chan Wah & Others [2000] 3 HKLRD 641 (Court of Final Appeal)). On that, see Jhaveri, Swati and Scully-Hill, Anne, ‘Executive and Legislative Reactions to Judicial Declarations of Constitutional Invalidity in Hong Kong: Engagement, Acceptance or Avoidance?’ (2015) 13 International Journal of Constitutional Law 507 and Jhaveri, Swati, ‘The Content of Fundamental and Other Constitutional Rights in Hong Kong’ in Richard Gordon and Johnny Mok (eds), Judicial Review in Hong Kong (2nd edn, LexisNexis 2014) 181249 .

52. See Young, Simon NM, ‘Rethinking the Process of Political Reform in Hong Kong’ (2015) 45 Hong Kong Law Journal 381 for alternative approaches to changing the process of political reform in Hong Kong and an argument for a generally more participatory process that will involve a relaxation of the role of the Central and Hong Kong governments.

53. Leung Lai Kwok Yvonne v Chief Secretary for Administration, HCAL 31/2015 (Court of First Instance) 5 June 2015.

54. Kwok Cheuk Kin v Chief Executive of HKSAR, HCAL 103/2014 (Court of First Instance) 25 June 2015.

55. Yvonne Leung (n 53) [48]. It would still not be open to the applicant to challenge the NPCSC’s approval of it.

56. As a result of a reservation to the ICCPR. See (n 10).

57. See earlier decisions on the judicial review of legislation relating to election petitions and restrictions on the commencement of such petitions: Re Ho Chun Yan Albert HCAL 83/2012, 30 July 2012; Ho Chun Yan Albert v Leung Chun Ying (No. 1) [2012] 5 HKLRD 149 (Court of First Instance); Leung Chun Ying v Ho Chun Yan (2013) 16 HKCFAR 735.

58. Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA). ibid 229 (Lord Greene MR): ‘something so absurd that no sensible person could ever dream that it lay within the powers of the authority’.

59. Kwok Cheuk Kin (n 54) [26].

60. Legislative Council Ordinance 2012 (c 542).

61. Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs [2014] 2 HKLRD 283 (Court of First Instance) and CACV 57/2014, 22 October 2015 (Court of Appeal) (referred to as Kwok Cheuk Kin By-Election) (currently on appeal to the Court of Final Appeal, hearing and appeal pending). Both provisions of the Basic Law and BORO set out the right of permanent residents to participate in politics and public affairs.

62. The court drew support from European and Canadian cases on this point: Yuman & Sadak v Turkey (2008) 48 EHRR 61, 86-89; and Sauve v Canada [2002] 3 SCR 519. The latter case was held to be authority for the proposition that there may be stricter requirements imposed on who can stand for election compared with who can vote (a point that was also made in a case Wong Hin Wai v Secretary for Justice [2012] 4 HKLRD 70 (Court of First Instance), [29] where the applicant had been convicted by a court of law and sentenced to imprisonment and challenged the constitutionality of the disqualification provisions of s 39(1)(B)(I) and s 39(1)(D) of the LCO).

63. Jhaveri, Swati, Ramsden, Michael and Scully-Hill, Anne, Hong Kong Administrative Law (2nd edn, LexisNexis 2013), ch 12 .

64. The Court of First Instance rejected the view of the applicants that since there were fundamental rights at stake, there should be a higher level of scrutiny: Kwok Cheuk Kin (n 61) [38]–[42].

65. ibid [4]–[7].

66. ibid [21] and [31]. The court eventually held that the political wisdom or otherwise of such a tactic or maneuver was not to be decided by the courts but was a political question (see also [58]–[59]).

67. Chan Yu Nam v Secretary For Justice, HCAL 32/2009, HCAL 55/2009, December 10, 2009, Constitutional and Administrative Law List (Court of First Instance) and CACV 2/2010, CACV 3/2010, December 7 2010 (Court of Appeal) [Hereinafter Chan Yu Nam]. See also Swati Jhaveri, ‘Judicialising Politics: A Role for the Courts in Electoral Reform in Hong Kong’ [2011] Public Law 227.

68. They reflect the sectors from which the governor appointed members to LEGCO before 1997. See s 20(1) of the LCO for a list. Examples include insurance, transport, finance, financial services, and labour.

69. See Young, Simon NM and Law, Anthony, ‘Privileged to Vote: Inequalities and Anomalies of the FC System’ in Christine Loh and Civic Exchange (eds), Functional Constituencies: A Unique Feature of The Hong Kong Legislative Council (Hong Kong University Press 2006) 59109 and Simon NM Young, ‘Can Functional Constituencies Co-Exist with Universal Suffrage?’ in Chan and Harris (n 16) 53–58.

70. See Section II(C)(2).

71. Wong Chi Fung v Secretary for Justice, HCAL 198/2015 (Court of First Instance), 22 June 2016.

72. Constitutional and Mainland Affairs Bureau, ‘Green Paper on Constitutional Development’ (Constitutional and Mainland Affairs Bureau July 2007), <www.legco.gov.hk/yr06-07/english/panels/ca/papers/ca0716-gppr200707-e.pdf> accessed 4 September 2017; and Constitutional and Mainland Affairs Bureau, ‘Consultation Document on the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012’ (Constitutional and Mainland Affairs Bureau 18 November 2009), <www.legco.gov.hk/yr13-14/english/panels/ca/papers/ca1209-cdoc20131204-e.pdf> accessed 4 September 2017); and Constitutional and Mainland Affairs Bureau, ‘Package of Proposals for the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012’ (Constitutional and Mainland Affairs Bureau April 2010), <www.cmab-cd2012.gov.hk/doc/package/package_e.pdf> accessed 4 September 2017. This package of proposals focused on ways of enhancing the representativeness of functional constituencies rather than their abolition per se.

73. LCO, s 20D (transport functional constituency); s 20N (real estate and construction functional constituency).

74. The Court of Appeal similarly defined the issues narrowly: see Chan Yu Nam (n 67) [82]–[84], [86].

75. ibid [74]–[75].

76. ibid [62].

77. ibid.

78. ibid [64].

79. ibid [93], [104] and [126].

80. ibid [29] and [32].

81. ibid [44], [80], [82]–[84] and [86].

82. National People’s Congress (NPC), ‘Decision of The National People’s Congress on the Method for the Formation of the First Government and the First Legislative Council of the Hong Kong Special Administrative Region’ (Adopted at the Third Session of the Seventh National People’s Congress, 4 April 1990), <www.asianlii.org/cn/legis/cen/laws/dotnpcotmftfotfgatflcothksar1588/> accessed 4 September 2017.

83. ibid [6].

84. See Jhaveri (n 67).

85. [1995] 5 HKPLR 181 (High Court) and [1995] 5 HKPLR 585.

86. See (n 10).

87. Hong Kong Letters Patent 1917 (SR & O 1917 c 1317), as amended by LN 406 of 1994.

88. Lee Miu Ling (High Court) (n 85) [2].

89. Lee Miu Ling (Court of Appeal) (n 85) [2].

90. They have also done this in the context of voting rights for prisoners: Chan Kin Sum (n 51).

91. Chan Shu Ying v Chief Executive of the HKSAR [2001] 1 HKLRD 405 (Court of First Instance).

92. ibid 422f–423c.

93. ibid 413f–415d. This echoes the views of the Court of Appeal in an earlier appeal on the application for leave to apply for judicial review: Wong Chung Ki & Another v The Chief Executive of the Hong Kong Special Administrative Region & Anor, CACV 1/2000, 20 June 2000 (Court of Appeal).

94. On which see Chen, Albert HY, ‘The Hong Kong Basic Law and the Limits of Democratization under “One Country Two Systems”’ (2017) 50 International Lawyer 69 .

95. See comments by the Secretary for Constitutional and Mainland Affairs in 2010, acknowledging that the electoral method for the functional constituencies did not comply with the principles of universality and equality: Legislative Council, ‘LCQ5: Functional Constituencies’ (Press release, Legislative Council 26 May 2010) <www.info.gov.hk/gia/general/201406/29/p201406290926.htm> accessed 22 August 2017.

96. The issues relating to the division of interpretive power between the NPCSC and the local courts over these provisions have been discussed in Section [I(A)] above. These are issues that will need to be considered in relation to both Articles 45 and 68. It is open to litigants to make the argument that even if the provisions in question meet the first the three criteria, there is no contest or lack of clarity on the scope of the provisions (ie the arguability threshold for a referral under Article 158 is not met) or alternatively, that the meaning of Articles 45 and 68 is not directly in issue /nor the predominant issue for consideration.

97. Chan Wah (n 51).

98. See Jhaveri (n 67) 232.

99. See discussion in Jhaveri (n 51). While the courts have not yet taken this approach to Article 26, they have affirmed its importance and maintained that restrictions on such a right must be narrowly construed: see Chan Kin Sum (n 51).

100. Chan Kin Sum (n 51) (on prisoners’ voting rights).

101. See also Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762. In this case, the court held that a fundamental right in terms of the constitutional guarantee of free elections through independent oversight by a judicial process is engaged, and that once the fundamental nature of the rights involved is appreciated, the inaptitude of the application of a strong margin of appreciation should be apparent.

102. Chan Kin Sum (n 51) [112] and [116].

103. As argued elsewhere – see Jhaveri (n 67). See also Yap, Po Jen, ‘A Typography of Constitutional Arguments in Hong Kong’ (2014) 44 Hong Kong Law Journal 459 .

104. A more detailed version of this is found in Article 22 of BORO:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The identity of political rights – i.e. fundamental or not – is therefore the subject of conflicting positions in the case law, leaving room for argument by applicants.

105. See Section II(C)(1).

106. See (n 51) on Chan Kim Sum and prisoners’ voting rights, albeit not on grounds of equality but Article 26. See also Chan Wah on indigenous voting rights (n 51). See also Jhaveri and Scully-Hill (n 51) on the government’s positive response to the courts’ decisions in both cases.

107. First mooted in Koo Sze Yiu & Anor v Chief Executive of the HKSAR [2006] 2 HKLRD 455 (Court of Final Appeal).

108. In particular, on the issue of functional constituencies and corporate voting. Indeed, this was the main barrier to awarding remedies in Lee Miu Ling.

109. See Young (n 34) 19 and Po Jen Yap, ‘New Democracies and Novel Remedies’ [2017] Public Law 30 for a discussion of suspension orders.

110. Article 1 of the Basic Law states that ‘The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China.’ A number of members from these political parties were barred from running in the most recent general elections for seats in LEGCO in September 2016. They have issued election petitions to challenge this, and the proceedings are ongoing. See also Tony Cheung, ‘Explain this: why all the fuss about Hong Kong independence?’ South China Morning Post (Hong Kong, 7 September 2017) <www.scmp.com/news/hong-kong/politics/article/2110059/explain-why-all-fuss-about-hong-kong-independence> accessed 8 September 2017. See also recent events surrounding public advocacy (mostly by students) of pro-independence ideas: Tammy Tam, ‘Hong Kong independence banners present a real test of Carrie Lam’s political wisdom’ South China Morning Post (Hong Kong, 10 September 2017) <www.scmp.com/news/hong-kong/article/2110528/hong-kong-independence-banners-present-real-test-carrie-lams> accessed 28 September 2017.

111. Under the Societies Ordinance or the Companies Ordinance.

112. Companies Ordinance (c 622) 2014.

113. Societies Ordinance (c 151) 1949.

114. For example, s 5A of the SO states:

The Societies Officer may, after consultation with the secretary for security, refuse to register or to exempt from registration a society or a branch- (a) if he reasonably believes that the cancellation is necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others (emphasis added).

Ss 5D and 8 contain similar provisions. Several pro-independence political parties face restricted access to the political arena for other reasons. For example, a member of one of the political parties, Hong Kong Indigenous, is challenging a refusal by the Registration and Electoral Office to mail out material relating to his party (Stuart Lau and Owen Fung, ‘Hong Kong Localist asks High Court to Rule on City’s Freedoms Amid Rising Political Tensions’ South China Morning Post (Hong Kong, 4 May 2016), <www.scmp.com/news/hong-kong/politics/article/1941392/hong-kong-localist-asks-high-court-rule-citys-freedoms-amid> accessed 4 September 2017). In addition, another pro-independence party, the Hong Kong National Party, is currently under scrutiny by the Secretary for Justice for any possible violations of local laws and the Basic Law (Owen Fung, ‘Hong Kong National Party Under Legal Scrutiny as Government Studies Whether Group Broke Law’ South China Morning Post (Hong Kong, 24 April 2016) <www.scmp.com/news/hong-kong/politics/article/1938026/hong-kong-national-party-under-legal-scrutiny-government> accessed 4 September 2017). The final resolution of these matters is pending.

115. This is largely due to textual similarities. See Shum Kwok Sher v HKSAR [2002] 2 HKLRD 793 (Court of Final Appeal) and Koon Wing Yee v Insider Dealing Tribunal [2008] 3 HKLRD 372 (Court of Final Appeal). See also Lo, PY, ‘Impact of Jurisprudence Beyond Hong Kong’ in Simon NM Young and Yash Ghai (eds), Hong Kong’s Court of Final Appeal: The Development of The Law in China’s Hong Kong (CUP 2013) 579 .

116. See Issacharoff, Samuel, Fragile Democracies: Contested Power in the Era of Constitutional Courts (CUP 2015) 7983 and Kogacioglu, Dicle, ‘Dissolution of Political Parties by the Constitutional Court in Turkey: Judicial Delimitation of the Political Domain’ (2003) 18 International Sociology 258 .

117. See eg Refah Partisi (The Welfare Party) v Turkey, ECHR 2003-II 267; Yazar v Turkey ECHR 2002-II 395 (Yazar); Freedom and Democracy Party (Ozdep) v Turkey ECHR 1999-VIII 293 and United Communist Party Of Turkey and Others v Turkey App no 19392/92 (ECtHR, 30 January 1998). See also Herri Batasuna & Anor v Spain App no 25803/04 (ECtHR, 30 June 2009)

118. Yazar, ibid 413–414

119. See Young, Simon NM, ‘Restricting Rights in the Basic Law of Hong Kong’ (2004) 34 Hong Kong Law Journal 109 and Jhaveri (n 51) on the use of jurisprudence from the ECtHR in Hong Kong.

120. See Jhaveri, Ramsden and Scully-Hill (n 63) ch 1; Section II(A), above.

121. See ibid, ch 7 for a discussion of the courts preference for procedural over substantive grounds of judicial review in areas of high policy.

122. See generally Edgar, Andrew, ‘Judicial Review of Public Consultation Processes: A Safeguard Against Tokenism?’ (2013) 24 Public Law Review 209 . See also, in the Hong Kong context, the applicants’ partial success on issues of process in the area of environmental issues in the Zhuhai-Macau-HK bridge case: Chu Yee Wah v Director of Environmental Protection [2011] 5 HKLRD 469 (Court of Appeal) and HCAL 9/2010, 18 April 2011 (Court of First Instance).

123. R (on the application of Moseley (in substitution of Stirling Deceased)) v London Borough of Haringey [2014] UKSC 116.

124. ibid [25] (Lord Wilson), borrowing from R v Brent London Borough Council, ex p Gunning (1985) 84 Local Government Reports 168.

125. ibid [26] (Lord Wilson).

126. See Jhaveri, Swati, ‘Transforming “Fairness” as a Ground of Judicial Review in Hong Kong’ (2013) 11 International Journal of Constitutional Law 358 .

127. See NPCSC (n 25), where the NPCSC recognized and acknowledge the apparent presence of divergent opinions on the issue of universal suffrage in the HKSAR.

128. ibid.

129. See Chu Yee Wah (n 122); for the Australian context, see Scurr v Brisbane City Council (1973) 133 CLR 242; for the English context, see Moseley (n 123).

130. A further issue for the applicants to consider is the possibility that the courts will hold that while there were issues with the consultation process, this had no impact on the final outcome of the consultation. The courts may therefore exercise their discretion and refuse to set aside or declare any consultation to be invalid. Therefore, the applicants need to consider the precise scope of any declaratory relief. As discussed in Section II(A), the courts felt that the scope of the declaratory relief that the applicants sought in Yvonne Leung and Kwok Cheuk Kin was too broad in its scope, especially in light of the absence of any impact of any perceived deficiency on the outcome of the consultation process. Accordingly, the precise scope of the declaratory relief sought needs to be carefully considered. This is an issue faced elsewhere – courts do take into account public inconvenience and expense and prejudice when considering whether to order a fresh consultation: see Moseley (n 123) and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

131. See also Ip, Eric, ‘Constitutional Conflict in Hong Kong under Chinese Sovereignty’ (2016) 8 Hague Journal on the Rule of Law 75 .

132. ‘Full text: Chinese State Council white paper on ‘One Country, Two Systems’ policy in Hong Kong’ South China Morning Post (Hong Kong, 10 June 2014) <www.scmp.com/news/hong-kong/article/1529167/full-text-practice-one-country-two-systems-policy-hong-kong-special> accessed 4 September 2017.

133. See Yap, Po Jen (ed), Judicial Review of Elections in Asia (Routledge 2016). See also Darwood, Yasmin, ‘Electoral Fairness and the Law of Democracy: A Structural Rights Approach to Judicial Review’ (2012) 62 University of Toronto Law Journal 499 .

134. See Tushnet, Mark, Weak Courts, Strong Rights – Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press 2008), where the court takes a strong approach to interpretation but a weaker one in terms of remedial impact beyond the judgment in a particular case.

135. Goldsworthy, Jeffrey, ‘Homogenizing Constitutions’ (2003) 23 Oxford Journal of Legal Studies 484, 484 . See also Tushnet (ibid); and Leckey, Robert, ‘Remedial Practice Beyond Constitutional Text’ (2016) 64 American Journal of Comparative Law 1, 35 .

136. See Yap (n 9) ch 12; Gardbaum (n 35) 289.

137. See also Chan, Cora, ‘Deference and the Separation of Powers: An Assessment of the Court’s Constitutional and Institutional Competences’ (2011) 41 Hong Kong Law Journal 7 for a discussion of the motivations for deference in Hong Kong.

138. Gardbaum (n 35) 290.

* Assistant Professor, Faculty of Law, National University of Singapore. I would like to thank the Centre for Asian Legal Studies for their support to attend the Annual Conference of the International Society of Public Law in Berlin in 2016 where an earlier version of this paper was presented; and Simon Young, Eric Ip, Cora Chan, Michael Ramsden and Po Jen Yap for their comments on this article. All errors remain my own.

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Asian Journal of Comparative Law
  • ISSN: 2194-6078
  • EISSN: 1932-0205
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