LEE MIU LING and Another v. ATTORNEY GENERAL

Headnote

[(1) The right of "equal suffrage" guaranteed by Art. 21(b) of the Bill of Rights requires every permanent resident of Hong Kong over the age of 18 to be accorded the same number of votes of equal weight in elections of members of the Legislative Council.

(2) Section 13 of the Hong Kong Bill of Rights Ordinance (Cap. 383) cannot be construed so as to deny the right of equal suffrage to electors in such elections.

(3) Functional constituencies in such elections may vary considerably in size since constituencies representing different sectional interests of varying sizes are intended to give those interests their own voice in the Legislative Council, and can be said, at the current stage of Hong Kong's political development, to contribute to the better government of Hong Kong as a whole.

(4) The right to vote in functional constituencies in such elections has not been accorded to all permanent residents of Hong Kong over the age of 18. Whether or not that amounts to an infringement of the right of equal suffrage, Art. VII(3) of the Letters Patent, on its proper construction, permits the enactment of laws which confer the right to vote in functional constituencies in such elections on a limited number of people.]

1994 M.P. No. 1696

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. Elections to the Legislative Council are due to take place in September. Half of its members are to be elected by functional constituencies. The electorate in these constituencies varies enormously in size. Moreover, a large number of people in Hong Kong are not eligible to vote in these constituencies at all. For these and other reasons, it is claimed that a significant group of people in Hong Kong have been disenfranchised. Two of them have commenced these proceedings. They seek a declaration that the legislative provisions relating to the functional constituencies infringe the Bill of Rights.

2. It is important to state at the outset that the Plaintiffs do not argue that the Bill of Rights outlaws functional constituencies altogether. Miss Gladys Li Q.C. on their behalf accepts that functional constituencies can live in harmony with the Bill of Rights. The Plaintiffs only seek the elimination of those features of the functional constituencies which make them objectionable.

THE 1995 ELECTIONS

3. Before 1985, members of the Legislative Council were appointed by the Government or held office ex officio. Since 1985, however, some of its members have been directly elected by functional constituencies, and in 1991, a number of its members were directly elected by geographical constituencies as well. The Government has now decided to make further changes to the way in which members of the Legislative Council should be elected in the 1995 elections.

4. However, the composition of the Legislative Council has always been governed by the Letters Patent. They have been amended over the years to provide for the various changes in the way in which members of the Legislative Council were elected. Accordingly, since the last elections to the Legislative Council in 1991, the Letters Patent have been further amended to implement the Government's proposals for the 1995 elections. Art. VI(1) of the Letters Patent, therefore, now provides for the Legislative Council to consist of 60 members, of whom

(a) 20 are to be returned by geographical constituencies,

(b) 30 are to be returned by functional constituencies, and

(c) 10 are to be returned by an Election Committee.

5. Geographical constituencies were, as I have said, first introduced for the 1991 elections to the Legislative Council. There were 9 geographical constituencies each returning 2 members. However, for the 1995 elections, there are to be 20 constituencies, all returning one member. Their electorate is provided for by the Electoral Provisions Ordinance (Cap. 367). No complaint is made about these constituencies since the franchise to vote in them has been granted to everyone who might be expected to be entitled to vote in them. That is because to be entitled to be registered as an elector in one of the 20 geographical constituencies, a person merely has to satisfy various age and residential qualifications. As permanent residents of Hong Kong over the age of 18, the Plaintiffs are entitled to be registered as electors in the geographical constituencies in which they live.

6. The functional constituencies and their electorate are provided for by the Legislative Council (Electoral Provisions) Ordinance (Cap. 381) ("the LC(EP)O"). The LC(EP)O has now been amended by the Legislative Council (Electoral Provisions) (Amendment) Ordinance 1994 (No. 57 of 1994) ("the amending Ordinance") to implement, amongst other things, the Government's proposals for the functional constituencies for the 1995 elections. Those constituencies are set out in Sch. 2 to the LC(EP)O. However, the nature and number of functional constituencies have changed quite significantly over the years. Thus, there were 9 functional constituencies, returning a total of 12 members, for the 1985 elections; there were 9 functional constituencies, returning a total of 14 members, for the 1988 elections; and there were 15 functional constituencies, returning a total of 21 members, for the 1991 elections. Now, there are to be 29 constituencies, all returning one member, with the exception of the Labour functional constituency, which will return 2 members. The persons entitled to be registered as electors in these constituencies are also listed in Sch. 2 to the LC(EP)O, but in addition they have to be entitled to be registered as electors in a geographical constituency. It follows that only some of those persons who are entitled to be registered as electors in a geographical constituency are eligible to be registered as electors in a functional constituency. The Government no longer suggests that either of the Plaintiffs are entitled to be registered as electors in any functional constituency, and the Plaintiffs therefore are examples of people who are entitled to be registered as electors in the geographical constituencies in which they live, but who are not eligible to vote in a functional constituency. It is that lack of eligibility to vote in a functional constituency which gives the Plaintiffs the standing to bring these proceedings.

7. The Election Committee constituency and its electorate are also provided for by the LC(EP)O as amended. This constituency is a new one, though it has similarities with the electoral college which returned 12 members to the Legislative Council in the 1985 and 1988 elections. The electorate in this constituency will be the members of the District Boards, and they will elect 10 District Board members to the remaining 10 seats reserved for them in the Legislative Council. No complaint is made in this case about this constituency, and I will not be referring to it again except in passing.

THE INTERNATIONAL COVENANT AND THE BILL OF RIGHTS

8. The International Covenant on Civil and Political Rights ("the ICCPR") was adopted by the General Assembly of the United Nations in 1966. In 1976, the Government of the United Kingdom ratified the ICCPR, and extended it to Hong Kong subject to certain reservations. On 8th June 1991, the Hong Kong Bill of Rights came into effect. Its purpose was to incorporate into the law of Hong Kong the provisions of the ICCPR as applied to Hong Kong. Many of its articles reproduced almost word for word various articles in the ICCPR. They included Arts. 2(2), 25 and 26, which were reproduced in the Bill of Rights as Arts. 1, 21 and 22.

9. Art. 21 of the Bill of Rights provides, so far as is material, as follows :

"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 ... at genuine periodic elections which shall be by universal and equal suffrage ..."

"[T]he distinctions mentioned in article 1(1)" is a reference to the fact that the rights recognised by the Bill of Rights are to "be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". That theme is emphasised by Art. 22 which provides that

"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."

10. The decisions of the Court of Appeal in R. v. Sin Yau Ming [1992] 1 H.K.C.L.R. 127 and the Privy Council in Attorney-General of Hong Kong v. Lee Kwong Kut [1993] A.C. 951 establish that the provisions of the Bill of Rights have to be given a generous and purposive construction, and that full recognition should be accorded to the aims of the ICCPR on which they are based. They must therefore be construed so as to be consistent with those aims. On the other hand, the rights which the Bill of Rights guarantee are subject to such reasonable limits as can be demonstrably justified in a free and democratic society. It is for the Government to justify any legislative provision which is found to infringe the rights guaranteed by the Bill of Rights, and the grounds of that justification have to be cogent and persuasive. The interests of the individual have to be balanced against the interests of society generally, with a bias towards the interests of the individual. However, in attempting to strike the right balance between the individual and society as a whole, rigid and inflexible standards should not be imposed on the legislature's attempts to resolve the problems with which society is faced.

11. It is also well established that in interpreting the provisions of the Bill of Rights, guidance can be obtained from the decisions of supra-national tribunals, such as the United Nations Human Rights Committee, and of domestic courts in jurisdictions such as Canada which have a constitutionally entrenched Bill of Rights, from the records of the drafting history of the ICCPR, and from the views of distinguished commentators on both the ICCPR and the law of human rights.

12. In the light of the materials which have been cited to me, and having regard to the aims of the ICCPR, I have no doubt that the right of participation in the public affairs of Hong Kong through freely chosen representatives guaranteed by Art. 21(a), and the right of "universal" suffrage guaranteed by Art. 21(b), requires every permanent resident of Hong Kong to be entitled to vote in the election of members to the Legislative Council, and to be effectively represented by the members elected in their constituencies. I equally have no doubt that the right of "equal" suffrage guaranteed by Art. 21(b) requires every permanent resident of Hong Kong to have the same voting power and to be accorded votes of equal weight in such elections. The concept of equal voting power, however, does not require constituencies to be of exactly the same size, and the fact that the right of equal suffrage is permitted to be subject to reasonable restrictions means, in my view, that constituencies may vary considerably in size, if constituencies representing different sectional interests of varying sizes can be said to contribute to the better government of Hong Kong as a whole.

13. However, the concept of equal voting power can only be satisfied by a system which accords to each voter the same number of votes - the "one person, one vote" principle. Moreover, a restriction on the right of all voters to have the same number of votes cannot be regarded as reasonable if the system which accords more votes to some voters than to others does so by reference to distinctions based on their status. That applies even though representative government has been a recent development of the political life of Hong Kong, and even though the form which democracy should take in Hong Kong is an evolving and dynamic process.

14. The Hong Kong Bill of Rights Ordinance (Cap. 383) ("the Bill of Rights Ordinance") expressly provides for what is to happen to any ordinance which was enacted before the Bill of Rights came into effect, but which does not admit of a construction consistent with the Bill of Rights Ordinance. Section 3(2) provides that it is automatically repealed to the extent of the inconsistency. However, neither the Letters Patent nor the Bill of Rights Ordinance expressly provide for what is to happen to an ordinance which also does not admit of a construction consistent with the Bill of Rights Ordinance, but which was enacted after the Bill of Rights came into effect on 8th June 1991. Art. VII(5) of the Letters Patent merely provides:

"No law of Hong Kong shall be made after [8th June 1991] that restricts the rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with [the ICCPR] as applied to Hong Kong."

However, Mr. Geoffrey Ma Q.C. for the Government does not contend that the difference in language between section 3(2) of the Bill of Rights Ordinance and Art. VII(5) of the Letters Patent should result in a difference in effect between legislation enacted before the Bill of Rights came into force and legislation enacted afterwards. Accordingly, if the provisions of Sch. 2 to the LC(EP)O as amended are inconsistent with the ICCPR as applied to Hong Kong, and therefore do not admit of a construction consistent with the Bill of Rights Ordinance, Mr. Ma agrees that I should declare Sch. 2 to be repealed.

THE CURRENT PROCEEDINGS

15. The 1st Plaintiff commenced these proceedings on 4th July 1994. The Government had, by then, announced its proposals for the 1995 elections, and those proposals had recently been approved by the Legislative Council. But the LC(EP)O had not yet been amended to give those proposals the force of law: the Governor did not give his assent to the amending Ordinance until 7th July 1994, and the relevant sections of it did not come into effect until 13th January 1995. Accordingly, on the date when these proceedings were commenced, the provisions which were being attacked were those which had governed the 1991 elections, and which would, in the absence of further legislation, have governed the 1995 elections. Now that the amending Ordinance has come into effect, that challenge to the previous provisions is not being pursued, and at the beginning of the hearing, I gave leave for the originating summons to be amended to enable the Plaintiffs to seek a declaration that the provisions of the LC(EP)O as amended relating to the functional constituencies for the 1995 elections infringe the Bill of Rights.

THE PLAINTIFFS' PRINCIPAL COMPLAINTS

(1) One person, one vote. The Plaintiffs' primary complaint is that the principle of "one person, one vote" is being infringed. The Chief Electoral Officer has recently said that about 3.9 m. people will be entitled to be registered as electors in the geographical constituencies, whereas it is estimated that only about 2.9 m. of them will be entitled to be registered as electors in the functional constituencies. In other words, about 2.9 m. people will be entitled to vote in both the geographical and functional constituencies, and about 1 m. people will be entitled to vote in only the geographical constituencies.

16. The Plaintiffs argue that the exclusion of about 1 m. people from the right to vote in the functional constituencies cannot be regarded as a reasonable restriction on the right of equal suffrage, because it is the status of permanent residents of Hong Kong which determines their eligibility to vote in the functional constituencies. Broadly speaking, every permanent resident who works (whether as an employee, or in a profession, or running a business) is eligible to vote in the functional constituencies. Disenfranchised from voting in the functional constituencies, therefore, are those who do not work, and they include housewives, the retired, the unemployed, and students over the age of majority who do not work because they are still in full-time education. Since the Bill of Rights outlaws distinctions between people on the basis of their status, and since a distinction between people who work and those who do not is a distinction based on their status, the Plaintiffs argue that the infringement of the "one person, one vote" principle cannot be justified on the footing that the exclusion of those who do not work is a reasonable restriction on the right of equal suffrage. I shall be returning to this argument later.

(2) The size of the constituencies. There are considerable differences in the size of the 29 functional constituencies. 20 of them cover, broadly speaking, the 15 functional constituencies in the 1991 elections. The Chief Electoral Officer estimates that about 200,000 people will be entitled to vote in these constituencies, whereas about 2.7 m. people will be entitled to vote in the 9 new constituencies. That is because the 15 functional constituencies in the 1991 elections covered only certain professions, industries and local government bodies, and the 9 new constituencies are intended to cover everyone else who works.

17. When one looks at the actual numbers, the difference in the size of the constituencies is dramatic. The Chief Electoral Officer estimates that the potential electorate in the 9 new functional constituencies is 166,000 people in the case of the smallest of the 9, and 487,000 people in the case of the largest, with the potential electorate in the other 7 new functional constituencies at various points between those two figures. On the other hand, if the 20 other constituencies have an electorate of 200,000 people, the average electorate in each of those constituencies will only be 10,000 people. Even then, though, there are wide differences. Three of the 20 constituencies are local government bodies: the Urban Council, the Regional Council and the Heung Yee Kuk (which constitutes the Rural functional constituency). The electorate in these 3 constituencies is tiny in comparison with the size of the electorate in the other constituencies. For example, in the Urban and Regional Council functional constituencies, the electorate is the members of those Councils. The Urban Council has 41 members, and the Regional Council has 39 members.

18. The Plaintiffs' complaint, therefore, is that when constituencies differ so considerably in size, the votes of the individual electors in large constituencies carry considerably less weight than the votes of the individual electors in small constituencies. The point is so obvious, say the Plaintiffs, that it does not need further elaboration: the vote of a constituent in the Regional Council functional constituency with its electorate of 39 (which could be as few as 36 if the 3 members of the Regional Council who are ex officio members of the Heung Yee Kuk choose to vote in the Rural functional constituency) obviously carries significantly greater weight than the vote of a constituent in the Community, Social and Personal Services functional constituency with its estimated electorate of 487,000 people.

19. However, whether this complaint is well founded or not, I doubt whether the Plaintiffs have the standing to make it. After all, the persons who have the standing to make this complaint are persons who are electors in the large functional constituencies, and whose votes carry less weight for that reason. Since the Plaintiffs are not electors in any functional constituency, they cannot complain that their votes in a functional constituency carry less weight than others.

20. But even if the Plaintiffs have the standing to make this complaint, I cannot accept it. Constituencies representing different sectional interests have been a part of the political life of Hong Kong for some time. The purpose is to give different sectional interests a voice of their own in the Legislative Council. Differences in the size of those constituencies are inevitable when constituencies are determined by function. The successful attacks in Canada on the differences in the size of geographical constituencies are therefore not to the point. Functional constituencies will by definition vary greatly in size. Thus, if there are, for example, twice as many accountants than engineers, the electorate in the Accountancy functional constituency is going to be twice as large as the electorate in the Engineering functional constituency. If that means that the votes of engineers carry greater weight than the votes of accountants, that is merely a function of the existence of more accountants than engineers. To the extent, therefore, that in this example the rights of accountants to equal suffrage with engineers can be said to be restricted, the existence of more accountants than engineers renders that restriction reasonable.

21. It may be said that if there are twice as many accountants as engineers, the Accountancy functional constituency should be represented by two members of the Legislative Council rather than one. But I must, I think, bear in mind that representative government is a relatively new phenomenon in Hong Kong, the development of representative government is a gradual process, and the state of political development in Hong Kong is an important factor in construing the rights guaranteed by Art. 21 of the Bill of Rights. I do not read Art. 21 of the Bill of Rights, in the current state of Hong Kong's political development, as requiring particular groups of professionals or working persons to have greater representation in the Legislative Council simply because there are more of them. In other words, Art. 21 should not, at this embryonic stage in the development of Hong Kong's electoral process, be regarded as requiring sectional interests to be represented in the Legislative Council proportionate to their size.

THE PLAINTIFFS' SUBSIDIARY COMPLAINTS

(1) Voting in more than one constituency, or voting more than once in the same constituency. Section 14 of the LC(EP)O, before it was amended by the amending Ordinance, restricted a person who was entitled to be registered as an elector in more than one functional constituency to be registered in one functional constituency only. I have not found a provision limiting the number of votes which a registered elector in a functional constituency had to one, but this omission was remedied by section 12(3) of the LC(EP)O as amended, which provides that an elector in a functional constituency is entitled to vote once and no more at an election. However, the Plaintiffs complain that it was nevertheless possible for persons to vote, albeit indirectly, in more than one functional constituency, or more than once in the same functional constituency. That was because companies were entitled to be registered as electors in a number of the functional constituencies. Accordingly, a person who controlled a group of companies, each of which was entitled to be registered as an elector in a functional constituency, could control the votes cast by each of the companies within the group, and his voting power in real terms was greater than other electors.

22. In my view, that complaint can no longer legitimately be made. That is because this potential manipulation of the electoral process has been eliminated. There is now no functional constituency in which a company is entitled to be registered as an elector. Instead, in those constituencies where eligibility to be registered as an elector is dependent on membership of a particular body, and where the member of that body is a company, the electors are now to be the directors of the company (up to a maximum of 6). It is open, of course, to the person who controls a group of companies to instruct the directors of those companies to cast their votes in a particular way, but in practice there is nothing he can do to enforce compliance with his instructions: the secrecy of the ballot box means that he will have no way of knowing whether his instructions were complied with.

(2) Choice of constituency in which to be registered. Some people are entitled to be registered as electors in more than one constituency. If one of those constituencies is the Urban Council functional constituency, the Regional Council functional constituency or the Rural functional constituency, they are obliged to be registered as electors in that constituency. Apart from such electors (and electors entitled to be registered in the Election Committee constituency), the LC(EP)O as amended is silent as to the constituency in which persons who are entitled to be registered as electors in more than one constituency should be registered. That was not always the case. Section 14 of the LC(EP)O, before it was repealed by the amending Ordinance, provided that a person entitled to be registered in more than one functional constituency could be registered in the constituency of that person's choice. However, since the LC(EP)O as amended is silent on the issue, there is no prohibition on the elector choosing the constituency in which to be registered, and that is the basis on which I proceed.

23. The Plaintiffs argue that such persons have greater voting power than persons who do not have such a choice. They can, for example, choose to be registered in a constituency with a small electorate, or in a constituency in which they believe the result may be close. I reject this argument. It is important to remember that the Plaintiffs do not challenge functional constituencies per se. That being so, it was always likely that there would be persons, however restrictively the electorate for each functional constituency is defined, who would be entitled to be registered in more than one constituency. The Government could, I suppose, have legislated for a comprehensive and exhaustive code for determining the constituency in which such an elector would be required to be registered. However, if it had, it could then have been accused of imposing unreasonable restrictions on the elector's right to be registered in a constituency in which he was entitled to be registered. Whatever course the Government decided to adopt, therefore, it could have been open to criticism. The fact of the matter is that the concept of equal voting power does not require absolute equality. The ideal of equality in voting power must be modified if other factors justify it. I have no doubt that the desirability of permitting those who are entitled to be registered in more than one constituency to choose the constituency in which they will in fact be registered justifies such marginal greater voting power as they might be said to have.

(3) Entitlement to be registered as an elector. Sch. 2 to the LC(EP)O as amended does not, of course, identify the electors in each functional constituency by name. It identifies them by description. The Plaintiffs argue that some of these descriptions take the decision as to who the electors should be away from the legislature, and put it into the hands of others. For example, many of the electors are described as members of a particular professional body or trade association. Accordingly, whether a person is entitled to be registered as an elector depends on the requirements for membership of that body or association. By adjusting the requirements for membership, the body or association can determine who some of the electors in the particular functional constituency should be. Again, some of the electors are described by virtue of the office they hold. An example in the Educational functional constituency are members of the Council of the Open Learning Institute of Hong Kong. Since the Governor may appoint up to 3 members of the Council, the Governor can decide who some of the electors in that functional constituency should be.

24. I regard this criticism as completely unfounded. It is fanciful in the extreme to suppose that the responsible professional bodies and trade associations set out in Sch. 2 would frame their requirements for membership in such a way, or that someone would be appointed to an office, so as to stack the electoral rolls with electors who would be more likely to vote for a preferred candidate. It is theoretically open, I suppose, to the Hong Kong Bar Association, for example, to amend its constitution to limit those of its members who are entitled to vote at a general meeting of the Association (and who are therefore electors in the Legal functional constituency) to those with blond hair and blue eyes. But if it is intended that barristers should be electors in the Legal functional constituency, what better way to identify those barristers who should be such electors than by limiting them to those who are voting members of their professional body?

25. In any event, this criticism, in my view, has nothing to do with the Plaintiffs' right to equal suffrage. The fact that bodies other than the legislature can in theory decide who some of the electors in some of the functional constituencies should be does not mean that those electors have greater voting power than other electors. They obviously have greater voting power than those persons who are not eligible to vote in functional constituencies at all, but that adds nothing to the primary complaint, which I have not yet dealt with, that the principle of "one person, one vote" is being infringed.

(4) Bodies alleged to practise discrimination. The Plaintiffs argue that two bodies which provide the whole of the electorate in two functional constituencies have unacceptable and discriminatory practices. They are the Chinese General Chamber of Commerce, whose members (whether individuals or by companies through their directors) comprise the whole of the electorate in the Commercial (Second) functional constituency, and the Heung Yee Kuk, whose officers make up the whole of the electorate of the Rural functional constituency. The criticism is that membership of the Chinese General Chamber of Commerce is only open to Chinese businesses and individuals, and that some of the officers of the Heung Yee Kuk who are electors in the Rural functional constituency are elected by village representatives, some of whom are themselves elected by a rudimentary electoral process which excludes the franchise from women.

26. I reject these criticisms. The fact that the members of the Chinese General Chamber of Commerce make up the whole of the electorate in the Commercial (Second) functional constituency is counter-balanced by the fact that members of the Hong Kong General Chamber of Commerce make up the whole of the electorate in the Commercial (First) functional constituency. Thus, businessmen who are excluded from voting in the Commercial (Second) functional constituency because they are not Chinese are permitted to vote in the Commercial (First) functional constituency. So far as the Rural functional constituency is concerned, the Home Affairs Department, in conjunction with the Heung Yee Kuk, has been actively promoting the adoption, in elections of village representatives, of new electoral rules which provide for "one person, one vote" and equal voting rights for men and women. By 31st January 1995, more than 60% of the villages concerned had undertaken to conduct elections under these new rules. I have already observed that the development of representative government is a gradual process, and that the rights guaranteed by Art. 21 have to be viewed in the light of the state of political development in Hong Kong. In view of the progress being made towards the elimination of discriminatory electoral practices in the New Territories, I find it quite impossible to say that the current methods of choosing the electors in the Rural functional constituency should have an impact on whether there has been an infringement of the rights guaranteed by Art. 21 of the Bill of Rights.

27. But again, these criticisms are a long way from constituting an infringement of the Plaintiffs' right to equal suffrage. Even if some of the electors in some of the constituencies have become electors as an indirect result of discriminatory practices, that does not mean that those electors have greater voting power than other electors. I repeat what I said earlier: they obviously have greater voting power than those persons who are not eligible to vote in any functional constituency at all, but that adds nothing to the Plaintiffs' primary complaint that the principle of "one person, one vote" is being infringed.

(5) Opportunities for corruption. I have already mentioned that the electorate in some of the functional constituencies is very small. The Plaintiffs argue that the smaller the constituencies, the greater the opportunities for corruption. They point, by way of example, to the recent conviction for corruption of the member of the Legislative Council who was returned for the Regional Council functional constituency in the 1991 elections at a time when the electorate in that constituency was only 36. In my view, this point adds nothing to the second of the Plaintiffs' primary complaints. It is merely an example of what can happen when the votes of individual electors in small constituencies carry greater weight than the votes of individual electors in large constituencies.

28. For these reasons, I either reject the Plaintiffs' subsidiary complaints, or conclude that they add nothing to the Plaintiffs' primary complaints. In any event, I doubt whether the Plaintiffs have the standing to make any of these subsidiary complaints. All of them are complaints which affect the voting power of persons who are electors in a functional constituency. Since the Plaintiffs are not electors in any functional constituency, they cannot complain that their votes in any functional constituency carry less weight than others.

"ONE PERSON, ONE VOTE"

29. I return finally to the Plaintiffs' primary complaint - the infringement of the principle of "one person, one vote", and to the two provisions on which the Government seeks to justify that infringement: section 13 of the Bill of Rights Ordinance, and Art. VII(3) of the Letters Patent.

(1) SECTION 13 OF THE BILL OF RIGHTS ORDINANCE

30. When the Government of the United Kingdom ratified the ICCPR and extended it to Hong Kong, it reserved the right not to apply Art. 25(b) of the ICCPR "in so far as it may require the establishment of an elected Executive or Legislative Council in Hong Kong". That, no doubt, was because at that time none of the members of the Executive and Legislative Councils were elected. This reservation was specifically included in the Bill of Rights Ordinance. Section 13 provides:

"Article 21 [of the Bill of Rights, which reproduced Art. 25 of the ICCPR] does not require the establishment of an elected Executive or Legislative Council in Hong Kong."

Mr. Ma argues that since the Legislative Council need not be elected, its composition is entirely within the province of the Government, subject, of course, to the Letters Patent. The right to decide the composition of the Legislative Council carries with it the right to decide the means by which that composition is to be achieved, whether by elections or by appointment or by holding office. It does not follow, says Mr. Ma, that if the Government decides that some or all of the members of the Legislative Council should be elected, those elections should be by universal and equal suffrage.

31. I agree with Mr. Ma to this extent. Since the members of the Legislative Council did not have to be elected, the Government had an entirely free hand, subject to the Letters Patent, to decide how persons could become members of the Legislative Council. However, since the enactment of section 13 of the Bill of Rights Ordinance, and the coming into force of the Bill of Rights on 8th June 1991, the Letters Patent have been amended to provide for a wholly elected Legislative Council. Art. VI(1) has, since 16th July 1993, provided that the 60 members of the Legislative Council shall be "elected in accordance with laws" made for that purpose in Hong Kong. Since the Letters Patent now require the establishment of an elected Legislative Council, section 13 of the Bill of Rights Ordinance is, to the extent that it relates to the Legislative Council, a dead letter until such time as the Letters Patent are amended to remove the requirement for an elected Legislative Council. That is why section 13 cannot now be used to justify a departure from the rights guaranteed by Art. 21 of the Bill of Rights. What Mr. Ma wishes to do is to construe section 13 as if it provided: "In the event of the Legislative or Executive Council in Hong Kong being elected or partly-elected, Art. 21 does not apply to such elections." But that is not what section 13 says. Accordingly, subject to the Letters Patent, the rights guaranteed by Art. 21 of the Bill of Rights apply to elections to the Legislative Council.

(2) ART. VII(3) OF THE LETTERS PATENT

32. However, Mr. Ma is on surer ground, in my view, when he relies on Art. VII(3) of the Letters Patent. I have said that Art. VI(1) provides for members of the Legislative Council to be "elected" in accordance with laws made for that purpose in Hong Kong. Art. VII(2) goes on to provide that laws may be made in Hong Kong "for the holding of elections as regards the election of members to the Legislative Council", and that such laws may provide for "different systems or methods of election". However, Art. VII(3) provides:

"Nothing in this Article [i.e. including Art. VII(5)] shall be construed as precluding the making of laws which, as regards the election of the Members of the Legislative Council, confer on persons generally or persons of a particular description any entitlement to vote which is in addition to a vote in respect of a geographical constituency." (Emphasis added)

Art. VII(3) is, at first blush, a clear mandate to the Government of Hong Kong to enact laws which impose limits on the persons who are to be entitled to vote in the functional constituencies, and it constitutes, at first sight, a derogation from the principle of "one person, one vote".

33. Miss Li argues otherwise. She reminds me that Art. VII(5) entrenches the ICCPR as applied to Hong Kong, and therefore outlaws any derogation from the rights guaranteed by the Bill of Rights. It is therefore necessary, she says, to read Art. VII(3) in a way which is consistent with the Bill of Rights. She claims that that is not difficult. So long as the additional votes permitted by Art. VII(3) are given on a universal basis, and provided that there is equality in voting power in the electorate, the fact that the functional constituencies are based on groups of persons of a particular description is not objectionable.

34. I cannot accept this argument. My reasoning is as follows:

(i) I do not believe that it is necessary to interpret Art. VII(3) in a way which is consistent with the Bill of Rights. That is because Art. VII(5) only prevents a derogation from the rights guaranteed by the Bill of Rights where it is the law of Hong Kong which purports to effect that derogation. It is not without significance that the crucial sentence in Art. VII(5) begins with the words: "No law of Hong Kong ..." It does not continue: "... or any Article in these our Letters Patent". Art. VII(5), therefore, does not prevent the Letters Patent from derogating from the rights guaranteed by the Bill of Rights. That is consistent with section 7(1) of the Bill of Rights Ordinance, which provides that the Bill of Rights Ordinance binds only the Government of Hong Kong, any public authority and anyone acting for the Government or a public authority. The Bill of Rights Ordinance does not therefore fetter the supreme power of the Sovereign (acting, of course, on the advice of the Government of the United Kingdom) to provide for Hong Kong's constitutional framework through the Letters Patent. That is recognised by the Letters Patent themselves which, in Art. XX, reserves to the Sovereign the right to revoke, alter or amend any Article in the Letters Patent.

(ii) Art. VII(5) took effect on 8th June 1991 when the Bill of Rights Ordinance came into operation. That is not surprising. Art. VII(5) entrenched the ICCPR as applied to Hong Kong through the Bill of Rights. But Art. VII(3) took effect much later. It took effect on 16th July 1993, at the same time as the new Art. VI(1) provided for an all-elected Legislative Council of 60 members. I infer from the timing of the promulgation of Art. VII(3) that Art. VII(3) was added to the Letters Patent in an attempt to render the laws which were to be enacted to give effect to the Government's proposals for the 1995 elections immune from challenge under Art. VII(5) on the basis that they were inconsistent with the ICCPR as applied to Hong Kong, and therefore with the Bill of Rights. I can, and should, take that into account in construing Art. VII(3).

(iii) In those circumstances, I have no difficulty in construing Art. VII(3). It provides that Art. VII(5) should not prevent the enactment of laws which confer on a limited number of people the right to vote in the functional constituencies as well as in the geographical constituencies. It is neither necessary nor permissible to construe the two references to the word "persons" in Art. VII( 3) as referring to all persons entitled to vote in geographical constituencies. If Miss Li's construction of Art. VII(3) were correct, it would, in my view, add nothing to what was already provided for in Arts. VI(1) and VII(2). To the extent, therefore, that the LC(EP)O as amended provides that only some of the electors in the geographical constituencies are entitled to be registered as electors in the functional constituencies, I find that that is expressly permitted by Art. VII(3).

CONCLUSION

35. For all these reasons, I refuse the Plaintiffs' application for a declaration that the provisions of the LC(EP)O as amended relating to functional constituencies infringe the Bill of Rights, and there must accordingly be judgment for the Defendant.

(Brian Keith)

Judge of the High Court