LO HOM CHAU v. THE SECRETARY FOR JUSTICE

CACV 2/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2 OF 2010

(ON APPEAL FROM HCAL NO. 32 OF 2009)

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Hon Stock VP:

Introduction

1.  This case addresses the constitutionality of corporate votes for functional constituency elections to the Legislative Council.

2.  The Legislative Council Ordinance, Cap. 542, establishes constituencies for the purpose of returning members at Legislative Council elections.  There are two forms of constituencies: geographical constituencies and functional constituencies.  Under the current provisions for general elections, 30 members are returned for geographical constituencies and 30 for functional constituencies.

3.  Only a natural person who is a permanent resident of Hong Kong is eligible for registration as an elector for a geographical constituency.  But sections 25 and 26 of the Ordinance enable certain specified corporate bodies to be electors for functional constituencies.

4.  The applicant in HCAL 32 of 2009, Mr Chan, is a taxi driver but the taxi association to which he belongs is not a body specified by the legislature as part of the Transport Functional Constituency to which he says his occupation is by its nature suited.  He is a permanent resident of Hong Kong.

5.  The applicant in HCAL 55 of 2009, Mr Lo, is a Sam Hong worker and is also a permanent resident of Hong Kong.  He says that his occupation is most naturally allied to those embraced by the Real Estate and Construction Functional Constituency, but the eligible electors in that constituency are corporate members of various associations.

6.  Article 26 of the Basic Law provides that:

“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.”

7.  The applicants say that art. 26 means that no one other than a permanent resident of the Hong Kong Special Administrative Region may be empowered to vote at any election in Hong Kong and that, accordingly, those provisions in the Ordinance which empower corporate bodies to vote are unconstitutional.

8.  Each applicant also asserts that the empowerment of corporate bodies to vote in functional constituencies discriminates against those who, as in their individual cases, are bereft of the means to form a company and, for that additional reason, those provisions are unconstitutional as being contrary to provisions of the Basic Law which require equality before the law and the enjoyment of constitutionally protected rights without distinction of any kind, such as property.

9.  Accordingly, by applications for judicial review, each applicant sought a declaration that ss. 25 and 26 of the Legislative Council Ordinance, to the extent that they provide for voting by corporations in elections for the Legislative Council, are inconsistent with arts. 25, 26 and 39 of the Basic Law and with arts. 1(1), 21 and 22 of the Hong Kong Bill of Rights and are unconstitutional and, therefore, of no effect.

10.  By his judgment dated 10 December 2009, Andrew Cheung J dismissed the applications.  Each applicant now appeals against that decision.

The Ordinance

11.  Section 18 provides for the establishment of geographical constituencies and s. 19 for 30 members to be returned at a general election for geographical constituencies.

12.  Section 20 establishes 28 functional constituencies, but since the Labour Functional Constituency has three seats, it follows that 30 seats are allocated to functional constituencies.  

13.  The functional constituencies are listed in sub-section (1) and, as the judge commented,[1] it is instructive to see the full list:

“(1) The following functional constituencies are established for the purpose of returning Members at elections for those constituencies -

(a) the Heung Yee Kuk functional constituency;

(b) the agriculture and fisheries functional constituency;

(c) the insurance functional constituency;

(d) the transport functional constituency;

(e) the education functional constituency;

(f) the legal functional constituency;

(g) the accountancy functional constituency;

(h) the medical functional constituency;

(i) the health services functional constituency;

(j) the engineering functional constituency;

(k) the architectural, surveying and planning functional constituency;

(l) the labour functional constituency;

(m) the social welfare functional constituency;

(n) the real estate and construction functional constituency;

(o) the tourism functional constituency;

(p) the commercial (first) functional constituency;

(q) the commercial (second) functional constituency;

(r) the industrial (first) functional constituency;

(s) the industrial (second) functional constituency;

(t) the finance functional constituency;

(u) the financial services functional constituency;

(v) the sports, performing arts, culture and publication functional constituency;

(w) the import and export functional constituency;

(x) the textiles and garment functional constituency;

(y) the wholesale and retail functional constituency;

(z) the information technology functional constituency;

(za) the catering functional constituency;

(zb) the District Council functional constituency.”

14.  Section 20(2) provides that the functional constituencies are constituted as provided by ss. 20A to 20ZB.

15.  What we see from ss. 20A to 20ZB are three categories of electorate for functional constituencies.  These categories have been usefully summarized in a 2003 paper[2] :

“[Functional constituencies] can broadly be categorized as follows:

a) Corporate or individual members of “umbrella organizations” entitled to vote at general meetings of such organizations

These umbrella organizations are not themselves FC electors, but their members who are entitled to vote at the general meetings are. For example, in the Commercial (First) FC, the electorate comprises members of the Hong Kong General Chamber of Commerce who are entitled to vote at general meetings of the Chamber. Another example can be found in the Tourism FC, the electorate of which includes, inter alia, members of the Travel Industry Council of Hong Kong entitled to vote at general meetings of the Council.

b) Major organisations representative of the relevant sectors

For example, the electorate of the Labour FC comprises trade unions registered under the Trade Union Ordinance of which all the voting members are employees.

c) Professionals registered under relevant legislation

An example would be the Social Welfare FC, the electorate of which comprises social workers registered under the Social Workers Registration Ordinance.”

16.  The consequence of this statutory arrangement is that electors in some functional constituencies are exclusively bodies (a body is defined in the Ordinance as an incorporated or unincorporated body), some exclusively individual natural persons, and some a mixture of the two.

17.  A further product of the system is that the number of electors registered for the various functional constituencies varies widely.  So, for example, in 2008 the number of bodies registered for the Agriculture and Fisheries, the Insurance and the Transport functional constituencies (none of which embraces individual electors) was 159, 144, and 178 respectively; whereas the number of electors registered for the Legal, Accountancy, and Health Services functional constituencies (individual electors only) were 6,111; 22,276; and 36,968 respectively.  In the Real Estate and Construction functional constituency, with which Mr Lo says he has a natural connection, there are 448 bodies registered as electors and 303 as individual electors.

18.  The two statutory provisions under challenge in these proceedings are ss. 25 and 26.

19.  Section 25 specifies who is eligible to be registered as an elector for each functional constituency, namely, persons so specified in ss. 20A to 20ZB.[3]

20.  If the person so specified is a natural person, he must either be registered as an elector for a geographical constituency (or be eligible for such registration and have made an application for registration). If eligible to be registered for more than one such constituency, such a person is entitled to registration for only one functional constituency.[4]  A natural person is not eligible to be registered as an elector for any constituency unless he is a permanent resident of Hong Kong, as defined by s. 2 of the Hong Kong Special Administrative Region Passports Ordinance, Cap. 539.[5]

21.  Where eligibility for registration as a corporate elector is conferred by the statute on a named corporate body, eligibility for registration arises only if that body has been operating for the 12 months immediately before making its application for registration as an elector, and where a body is eligible because it is a corporate member of a specified umbrella organisation, eligibility for registration arises only if the member has been a corporate member of the organization, and has been operating for the 12 months immediately preceding application for registration.[6]

22.  Section 26 addresses the mechanism by which a corporate elector is required to cast its vote at an election.  A corporate elector is required to select an eligible person to be its authorised representative “for the purpose of casting its vote at an election.”  I emphasise “its” because it is clearly intended that the representative shall cast his vote as directed by the corporate elector.  A person is eligible to be an authorised representative of a corporate elector for a functional constituency only if he is registered, or has applied to be registered, as an elector for a geographical constituency – he must therefore be a permanent resident – and has special connection with the corporate elector.

The arguments

23.  The essence of the argument advanced by Ms Li SC, for Mr Chan, and adopted by Mr Pun, for Mr Lo, is that art. 26 not only ensures that permanent residents have the right to vote in elections in Hong Kong but precludes the legislature from conferring that right upon any others in any form of election in Hong Kong.  The contention continues that since corporations are not natural persons and only natural persons can be permanent residents, the legislature is precluded from empowering corporations to vote.

24.  The argument is that the plain language of art. 26 so dictates; that it permits of no other construction; that there is no need to look to extrinsic material or history touching upon the pre-1997 position (or indeed the pre-1990 position – the date on which the Basic Law was promulgated) because, prior to either date, there was in place no legislation or constitutional instrument which housed a provision akin to art. 26, so that what was intended was entirely new; and, furthermore, that the effect of the provisions for corporate voting is to confer an electoral voice on outsiders or foreigners, a label used non-pejoratively by Ms Li to describe the fact that there is no requirement by the Ordinance that a corporate elector be incorporated in Hong Kong or be in the control of permanent residents, a state of affairs which, she says, can never have been intended by the drafters of the Basic Law.  Such provisions in the Basic Law as are said to provide contrary indicia do not, Ms Li argues, go to the right to vote but to the mechanism for giving effect to the requirements of the Basic Law as to future elections.

25.  Mr Thomas SC for the respondent does not accept the construction for which Ms Li contends.  It is not, he argues, the only construction that is presented by the words of article 26 on its own and, more particularly, the effect of such a construction would be to attribute an intention upon those who drafted the Basic Law to effect a sudden change in the electoral dispensation which sits entirely at odds with the history of Hong Kong’s constitutional development in the years leading up to 1990 and 1997 and, more plainly still, with other provisions in the Basic Law.

26.  I note that in the case of corporate electors, the corporation does not itself cast the vote.  The statute provides that the vote must be cast by its authorized representative who must be a permanent resident.  It might be said that by reason of this provision, art. 26 is not breached since, in the event, the votes are always cast by permanent residents.  But the point is not taken, no doubt because its success would depend on form and not substance.

The approach

27.  In that the key proposition advanced on behalf of the applicants is that art. 26 mandates that the only persons entitled to vote at elections in Hong Kong are permanent residents, one has at once to recognize that art. 26 is not the constitution but is, rather, part of it so that the appropriate question is whether the Basic Law, including art. 26, mandates that the only persons entitled to vote at elections in Hong Kong are permanent residents; or, put another way, whether the Basic Law, including art. 26, permits corporate voting at elections.  Any interpretation of the Basic Law must be purposive and contextual, so it is to the whole of the Basic Law that we must look for the answer to the question posed in this case.  It could be that that examination and, to the extent permissible, extrinsic material and history, will reveal that art. 26 bears the construction for which the applicants contend.  On the other hand, it could be that a proper exercise in constitutional interpretation will demonstrate that it cannot have that meaning; not least in this case when, as we shall see, there are references elsewhere in the Basic Law to corporate voting.

28.  Although the principles to be applied when interpreting a provision of the Basic Law are now well trodden, they bear repeating in this case.  That is because in my opinion and with respect, the central contention advanced by Ms Li depends for its validity on an approach which is neither purposive nor contextual, whereas purpose and context are the cornerstones of constitutional interpretation.

29.  The theme is struck in the judgment of Li CJ in Ng Ka Ling & others v Director of Immigration:

“The Basic Law … uses ample and general language. It is a living instrument intended to meet changing needs and circumstances.

It is generally accepted that in the interpretation of a constitution such as the Basic Law a purposive approach is to be applied. The adoption of a purposive approach is necessary because a constitution states general principles and expresses purposes without condescending to particularity and definition of terms. Gaps and ambiguities are bound to arise and, in resolving them, the courts are bound to give effect to the principles and purposes declared in, and to be ascertained from, the constitution and relevant extrinsic materials. So, in ascertaining the true meaning of the instrument, the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context, context being of particular importance in the interpretation of a constitutional instrument.

… The purpose of a particular provision may be ascertainable from its nature or other provisions of the Basic Law or relevant extrinsic materials including the Joint Declaration.

As to the language of its text, the courts must avoid a literal, technical, narrow or rigid approach. They must consider the context. The context of a particular provision is to be found in the Basic Law itself as well as relevant extrinsic materials including the Joint Declaration. Assistance can also be gained from any traditions and usages that may have given meaning to the language used.”[7]

30.  In Director of Immigration v Chong Fung Yuen[8], the Chief Justice explained that aids to interpretation included internal aids, such as provisions in the Basic Law itself other than the provision in question, as well as such external materials as throw light on the context or purpose of the Basic Law or its particular provisions.  The extrinsic materials which may be considered include the Joint Declaration and the Explanations on the draft Basic Law given at the National People’s Congress in March 1990, shortly before the Law’s adoption on 4 April 1990.  However, in a passage upon which Ms Li places much emphasis, he added that the courts would not on the basis of any extrinsic materials depart from the clear meaning of the language construed in the light of its context and purpose, so as to give the language and meaning which the language is not able to bear.[9]

31.  It follows that the validity of Ms Li’s contention may only conscientiously be assessed by an examination of the context of art. 26, namely, of other provisions of the Basic Law as well as of such extrinsic materials as are relevant and of history.

32.  It is important to note that this Court’s function is not to pass judgment on the merits of the political arguments for and against the concept of functional constituencies, or upon questions such as the pace of electoral development; our function is, as always, one of determining legality.  The history which follows is therefore neither a justification nor a criticism of electoral development in the Region.  It is a matrix against which the merit of the legal arguments may be tested.  The relevance of history and the boundaries of a court’s interpretative function are reflected in a passage from the Opinion of Lord Hoffman in Matadeen v Minister of Education and Science[10]:

“It has often been said … that constitutions are not construed like commercial documents. This is because every utterance must be construed in its proper context, taking into account the historical background and the purpose for which the utterance was made. The context and purpose of a commercial contract is very different from that of a constitution. The background of a constitution is an attempt, at a particular moment in history, to lay down an enduring scheme of government in accordance with certain moral and political values. Interpretation must take these purposes into account. Furthermore, the concepts used in a constitution are often very different from those used in commercial documents. They may expressly state moral and political principles to which the judges are required to give effect in accordance with their own conscientiously held views of what such principles entail. It is however a mistake to suppose that these considerations release judges from the task of interpreting the statutory language and enable them to give free rein to whatever they consider should have been the moral and political views of the framers of the constitution. What the interpretation of commercial documents and constitutions have in common is that in each case the court is concerned with the meaning of the language which has been used. As Kentridge A.J. said in giving the judgment of the South African Constitutional Court in State v Zuma 1995 (4) B.C.L.R. 401, 412: ‘If the language used by the lawgiver is ignored in favour of a general resort to “values” the result is not interpretation but divination.’”

33.  The passages which follow are a summary of the history of electoral development in Hong Kong since 1985, how and why functional constituencies were introduced, in the course of which history one discerns repeated reference to a policy of gradual progress or evolution towards eventual universal suffrage. 

History

(1) Before 1985

34.  Before 1985, there were no elections, direct or indirect, to the Legislative Council.  Immediately prior to new arrangements effected in 1985, there were 48 seats on the Council comprising one allocated to the Governor, three to ex-officio members, 29 to unofficial members and 15 to official members.  All the unofficial members were selected and appointed by the Governor.

35.  In 1976 the Government of the United Kingdom had ratified the International Covenant on Civil and Political Rights (ICCPR).  Its relevance to Hong Kong’s electoral system is that the Covenant requires, by art. 25(b), that “[e]very citizen shall have the right… to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage… ”, but in applying the ICCPR to Hong Kong, the Government of the United Kingdom did so with a number of reservations which included the following:

“The Government of the United Kingdom reserve the right not to apply sub-paragraph (b) of article 25 in so far as it may require the establishment of an elected executive and legislative Council in Hong Kong… .”

(2) The 1984 Green paper

36.  In a Green Paper in 1984 which addressed “The Further Development of Representative Government in Hong Kong,” it was said that “the most distinctive feature of the present system of government in Hong Kong is that it operates on the basis of consultation and consensus.”[11].  That system had developed by reference to two groupings, described as constituencies: geographical constituencies and functional constituencies.  The geographical constituencies were based on institutions such as rural committees and District Boards whereas the functional constituencies were said to be based on sectors such as commerce, industry, finance, and education.  It was from those geographical and functional groupings that unofficial members were appointed.

37.  The purpose of the Green Paper was to suggest how the central institutions of government “might be made more representative in a way which will make the Government more directly accountable to the people of Hong Kong”[12]. This was said to be part of a policy referred to in another Green Paper as early as June 1980 in which it had been stated that “the Executive and Legislative Councils …will continue to evolve as circumstances require, within the imperatives of stability and dependability which the special circumstances of Hong Kong dictate.”[13]

38.  The 1984 Green Paper addressed suggestions about a universal franchise but said that “it is clearly essential that the stability and relative harmony of the community, which has been built up over a long period, should be preserved, particularly at this time; that the special political circumstances of Hong Kong should be taken into account; and that full weight should be given to representation of the economic and professional sectors of Hong Kong society which are essential to future confidence and prosperity.  Direct elections would run the risk of a swift introduction of adversarial politics, and would introduce an element of instability at a crucial time.”[14] (Emphasis added).  It was concluded that the introduction of direct elections to the Legislative Council would not be appropriate at that stage.  The emphasis of the Paper was on gradual progress and present stability.

39.  What the Paper proposed was the establishment of an electoral college in the case of geographical constituencies and in the case of functional constituencies “that the present informal system of selecting members from a wide range of such constituencies … should be developed into a more formal representative system by the introduction of appropriate arrangements for the election by each of these functional constituencies of one or more representatives to serve on the legislative Council”[15].

(3) The 1984 White Paper

40.  The consequential White Paper, published in November 1984, suggested that public reaction was generally in favour of the aims of the Green Paper “and the gradual and progressive nature of the proposals made in it”[16]. What was proposed in the White Paper was that 12 seats would be elected by an electoral college, based on geographical distribution, as represented by District Boards; and that 12 seats would be elected by functional constituencies, such constituencies to be “based on well-recognised major organisations, associations and institutions with a territory-wide coverage [and that] the lists of the voting members of these organizations will be adopted as the electoral rolls for these constituencies.  Corporate members will nominate representatives to vote on their behalf”[17]; and that “there would be 22 members appointed by the Governor and 10 ex-officio members”; a total of 56 members.  It was contended that “the bulk of public response from all sources suggested a cautious approach [to direct elections] with a gradual start by introducing a very small number of directly elected members in 1988 and building up to a significant number of directly elected members by 1997.” [18] (Emphasis added)

(4) The Sino-British Joint Declaration

41.  The Joint Declaration of December 1984 contains a number of provisions subsequently reflected in the Basic Law.  They include the following:

·   “The government and legislature of the Hong Kong Special Administrative Region shall be composed of local inhabitants.  The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People’s Government…. The legislature of the Hong Kong Special Administrative Region shall be constituted by elections.”[19]

·   “The provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force.”[20]

42.  In an Explanatory Note or Elaboration to Annex I, the Central Government explained “its basic policies regarding Hong Kong” with a reference to the ICCPR and the International Covenant on Economic, Social and Cultural Rights by saying that:

“The Covenants are too lengthy to reproduce here but they are public documents. They apply to Hong Kong, with certain reservations, and, in accordance with this section of the Annex, will continue to do so after 30 June 1997.”[21]

43.  The effect of this Note has been said to “indicate that these limitations on the application of the ICCPR [will continue] under the new arrangements.”[22]

44.  The theme of the Joint Declaration may, it seems to me, fairly be described as one of continuity, though not stagnation, of the systems then in place.

(5) The 1985 legislation

45.  In introducing to the legislature the Legislative Council (Electoral Provisions) Bill 1985, the Chief Secretary stated that one of the ultimate objectives of the present plans for the legislature and of any later extensions and modifications was “to ensure that a system of government is firmly established during the next 12 years which will preserve and enhance the essential features of our present society.  If this is achieved then we can be hopeful of a smooth transition for Hong Kong from its present status of a British Dependent Territory to that of a Special Administrative Region of China, with a high degree of autonomy.”[23]

46.  The 1985 Legislative Council (Electoral Provisions) Ordinance made provision for functional constituencies.  Regulations made thereunder provided for the appointment of authorised representatives by corporate electors to vote on their behalf.[24]

47.  Elections were duly held in 1985 in accordance with the relevant provisions.

(6) Drafting of the Basic Law

48.  In 1985, work commenced on the drafting of the Basic Law.  The exercise took more than four years.  Within Hong Kong, discussions took place on the introduction of direct elections in geographical constituencies.

(7) More Green and White papers: 1987-1988

49.  There was a review in 1987, the purpose of which was “to consider whether the systems of representative government in Hong Kong should be further developed in 1988 and, if so in what manner.  ... It will… also take fully into account the terms of the Sino-British Joint Declaration on the Question of Hong Kong.”[25]  The resulting Green Paper and responses to it led to a White Paper in 1988 which recommended limited expansion for functional constituencies in 1988 by enlarging particular constituencies to include more groups with related interests and, consequently, with a small increase in the number of seats elected through such constituencies, from 12 to 14.  Legislation was enacted to give effect to these changes.  As the judge correctly points out[26] there were however, as yet, no direct elections for geographical constituencies.

(8) The Basic Law

50.  The Basic Law was promulgated by the Seventh National People’s Congress at its Third Session on 4 April 1990.

51.  Although it is more usual for background information to be addressed in a judgment separately from the section which rehearses relevant statutory provisions, I think it more purposeful in this case to specify the relevant statutory provisions as part of the history.

52.  The following provisions of the Basic Law are relevant for present purposes:

•Arts. 2 and 17 (1), which authorises the Hong Kong Special Administrative Region to enjoy legislative (as well as executive and independent judicial) power.

•Art. 3, which provides that the executive authorities and legislature of the Hong Kong Special Administrative Region shall be composed of “permanent residents of Hong Kong in accordance with the relevant provisions of this Law.”

•Art. 26, the article upon which the applicant’s case concentrates, which states that 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.

•Art. 39 (1), which stipulates that the provisions of the International Covenant on Civil and Political Rights “as applied to Hong Kong” shall remain in force and shall be implemented through the Region’s laws; that (art. 39 (2)) the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law; but that such restrictions shall not contravene the provisions of article 39 (1).

•Art. 45, which states that the Chief Executive of the Hong Kong Special Administrative Region:

“… shall be selected by election or through consultations held locally and be appointed by the Central People's Government.

The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.

The specific method for selecting the Chief Executive is prescribed in Annex I… .”

•Art. 67, which provides that the Legislative Council shall be composed of Chinese citizens who are permanent residents of the Region with no right of abode in any foreign country.  However, permanent residents of the Region who are not of Chinese nationality or who have the right of abode in foreign countries may also be elected as members of the Legislative Council of the Region, provided that the proportion of such membership does not exceed 20 percent of the total membership of the Council.

•Art. 68 is important.  It is in the following terms:

“The Legislative Council of the Hong Kong Special Administrative Region shall be constituted by election.

The method for forming the Legislative Council shall be specified in the light of actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of all the members of the Legislative Council by universal suffrage.

The specific method for forming the Legislative Council and its procedures for voting on bills and motions are prescribed in Annex II… .”

•Annex I, which is entitled “Method for the Selection of the Chief Executive....” requires the establishment of a “broadly representative” Election Committee to be composed of 800 members from various stipulated “sectors”, including industrial, commercial and financial sectors, the professions, labour, social services, religious and other sectors, and members of the Legislative Council.  Then:

“3. The delimitation of the various sectors, the organizations in each sector eligible to return Election Committee members and the number of such members returned by each of these organizations shall be prescribed by an electoral law enacted by the Hong Kong Special Administrative Region in accordance with the principles of democracy and openness.

Corporate bodies in various sectors shall, on their own, elect members to the Election Committee, in accordance with the number of seats allocated and the election method as prescribed by the electoral law.

…

6. The first Chief Executive shall be selected in accordance with the “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”.

7. If there is a need to amend the method for selecting the Chief Executives for the terms subsequent to the year 2007, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People’s Congress for approval.” (Emphasis added)

•Annex II is headed “Method for the Formation of the Legislative Council… and its Voting Procedures”. Those sections of Annex II relevant for present purposes read as follows:

“I. Method for the formation of the Legislative Council

1. The Legislative Council of the Hong Kong Special Administrative Region shall be composed of 60 members in each term. In the first term, the Legislative Council shall be formed in accordance with the “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”. The composition of the Legislative Council in the second and third terms shall be as follows:

Second term

Members returned by functional constituencies	30
Members returned by the Election Committee	6
Members returned by geographical constituencies through direct elections	24

Third term

Members returned by functional constituencies	30
Members returned by geographical constituencies through direct elections	30

2. Except in the case of the first Legislative Council, the above-mentioned Election Committee refers to the one provided for in Annex I of this Law. The division of geographical constituencies and the voting method for direct elections therein; the delimitation of functional sectors and corporate bodies, their seat allocation and election methods; and the method for electing members of the Legislative Council by the Election Committee shall be specified by an electoral law introduced by the Government of the Hong Kong Special Administrative Region passed by the Legislative Council.”(Emphasis added).

Part III of Annex II is as follows:

“With regard to the method for forming the Legislative Council of the Hong Kong Special Administrative Region and its procedures for voting on bills and motions after 2007, if there is a need to amend the provisions of this Annex, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People's Congress for the record."

(9) The 1990 NPC Decision

53.  The Decision referred to in Annex II was adopted on 4 April 1990.  It reads as follows:

“1. The First Government and the First Legislative Council of the Hong Kong Special Administrative Region shall be formed in accordance with the principles of state sovereignty and smooth transition.

2. Within the year 1996, the National People’s Congress shall establish a Preparatory Committee for the Kong Kong Special Administrative Region, which shall be responsible for preparing the establishment of the Region and shall prescribe the specific method for forming the first Government and the first Legislative Council in accordance with this Decision.

3. The Preparatory Committee … shall be responsible for preparing the establishment of the Selection Committee (CE).. .

…

6. The first Legislative Council of the Hong Kong Special Administrative Region shall be composed of 60 members, with 20 members returned by geographical constituencies through direct elections, 10 members returned by an election committee and 30 members returned by functional constituencies. If the composition of the last Hong Kong Legislative Council before the establishment of the Hong Kong Special Administrative Region is in conformity with the relevant provisions of this Decision and the Basic Law… those of its members who uphold the Basic Law…. and pledge allegiance to the Hong Kong Special Administrative Region … and who meet the requirements set forth in the Basic Law… may, upon confirmation by the Preparatory Committee, become members of the first Legislative Council of the Region.

The term of office of members of the first Legislative Council of the Hong Kong Special Admission Region shall be two years.” (Emphasis added)

(10) The 1990 Explanation 

54.  On 28 March 1990, Mr Ji Pengfei, Chairman of the Drafting Committee for the Basic Law, addressed the National People’s Congress to explain the Basic Law and its related documents.  In relation to the political structure designed by the Basic Law for the Special Administrative Region, he said that:

“The political structure of the Hong Kong Special Administrative Region shall accord with the principle of ‘One country, two systems’ and aim to maintain stability and prosperity in Hong Kong in line with its legal status and actual situation. To this end, consideration must be given to the interests of the different sectors of society and the structure must facilitate the development of the capitalist economy in the Region. While the part of the existing political structure proven to be effective will be maintained, a democratic system that suits Hong Kong’s reality should gradually be introduced. In accordance with this principle, Chapter IV and Annexes I and II…contain the following major provisions… .

….

(3) The method for forming the Legislative Council and its procedures for voting on bills and motions. According to the draft Basic Law, the Legislative Council will be constituted by election. The method for forming the Legislative Council will be worked out in the light of the actual situation in Hong Kong and applied in a gradual and orderly way. The ultimate goal is the election of all the members of the Legislative Council by universal suffrage. In accordance with these provisions, Annex II provides specific rules on the formation of the Legislative Council. The first and second Legislative Council will be formed by members elected by functional constituencies, by the Election Committee or by geographical constituencies through direct elections. During the first 10 years after the Special Administrative Region is established, the number of seats in the Legislative Council for members elected by geographical constituencies through direct elections will be increased with each passing council, and the number of seats elected by the Election Committee will be gradually reduced. When the third Legislative Council is formed, members elected by functional constituencies and geographical constituencies through direct elections will each share half the seats of the Legislative Council. These rules accord with the principle of developing the election system in a gradual and orderly way…. Ten years after the establishment of the Special Administrative Region, if there is a need to improve the method for forming the Legislative Council and its procedures for voting on bills and motions, such improvements shall be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they must be reported to the Standing Committee of the National People’s Congress for the record. The method for forming the Legislative Council and the Council’s procedures for voting on bills and motions are provided in an annex because it is more amenable to revision when necessary.” (Emphasis added).

(11) 1991 elections

55.  Pursuant to legislative amendments in 1990, the Legislative Council elections in 1991 included the first direct elections for geographical constituencies.  In respect of those elections, the number of functional constituency seats was increased from 14 to 21.

(12) The Hong Kong Bill of Rights Ordinance (1991)

56.  This Ordinance came into force on 8 June 1991.  It gave direct domestic effect to the International Covenant on Civil and Political Rights as applied to Hong Kong.

57.  In relation to political rights, art. 21 reflects the provisions of art. 25 of the ICCPR and states that every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in art. 1(1) and without unreasonable restrictions, to take part in the conduct of public affairs, directly or through freely chosen representatives and, particularly:

“(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."

58.  However, in this regard, the terms of s. 13 of the Ordinance are important:

“Article 21 does not require the establishment of an elected Executive or Legislative Council in Hong Kong.”

59.  Art. 1(1) states that the rights recognised in the Bill of Rights shall 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; and art. 22 states that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law and that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any of the grounds mentioned in article 1(1).

(13) The Patten changes (1994)

60.  There was another White Paper in 1994 which resulted in legislative changes which governed the Legislative Council elections in 1995.  The key change made to the functional constituency system was the replacement of corporate voting with voting by individual members or employees in all such constituencies and by the creation of nine new functional constituencies which were intended to include the entire working population.[27]  In place of each former corporate elector the new system conferred the right to vote on up to six corporate directors.

61.  The Central Government of the People’s Republic of China had, prior to the enactment of these legislative changes, expressed the view that the proposed steps breached the spirit of the Joint Declaration and also contravened the Basic Law and the 1990 NPC Decision.  Diplomatic exchanges failed to settle the controversy.  The legislation was enacted but by a Decision dated 31 August 1994 the Standing Committee of the National People’s Congress (NPCSC) declared that the electoral arrangements were in breach of these three instruments and determined that the life of the 1995 Legislative Council would terminate on 30 June 1997 and that the Preparatory Committee for the Region would in accordance with the 1990 Decision prescribe the method for the formation of the first post-resumption Legislative Council; in other words, that the previous plan for a “through train” whereby those serving in the pre-resumption Legislative Council would continue to serve on and after 1 July 1997 was now a dead letter.

(14) The Preparatory Committee: 1996 and 1997

62.  By a Decision dated 24 March 1996, the Preparatory Committee established a Provisional Legislative Council intended to function until the formation of the first legislature of the Hong Kong Special Administrative Region, no later than 30 June 1998.  Members of the Provisional Legislative Council were to be nominated and elected by the Selection Committee.

63.  It will be remembered that the 1990 Decision envisaged the establishment of a Preparatory Committee in 1996 to prescribe the method for the formation of the first Legislative Council.  Pursuant to that Decision, the Preparatory Committee, on 23 May 1997, adopted “Measures for the Formation of the First Legislative Council of the Hong Kong Special Administrative Region of the People’s Republic of China”. The Measures included the following:

•that the Legislative Council would be composed of 60 members with 20 members returned by geographical constituencies through direct elections, 30 members returned by functional constituencies and 10 members returned by the Election Committee;

•candidates for membership of the Council had to be permanent residents of the region;

•the geographical direct elections were to adopt the multi-seat, single vote system or the proportional representation system; and

•functional constituencies were to return 30 seats: the 20 functional constituencies which existed prior to the 1995 changes were reinstated and they would return 21 seats; and there would be nine further seats chosen from 15 fresh constituencies which were stipulated in the Measures.

64.  Article 6 of the Measures stated:

“The election method for the functional constituencies shall be determined according to their respective ways of composition. For the functional constituencies which are composed by corporate bodies, each corporate member shall cast one vote; for the constituencies which are composed by individuals with professional qualifications, each individual member shall cast one vote: and for those functional constituencies composed of corporate individual members, each corporate individual member shall cast one vote.” (Emphasis added)

65.  The effect of these Measures, and in particular of art. 6, was to resurrect voting by corporate members.

66.  On 3 July 1997, the NPCSC issued a further Decision by which it approved the work of the Preparatory Committee.

(15) Continuation of the Reservations

67.  By letter dated 20 June 1997, the People’s Republic of China notified the Secretary-General of the United Nations that pursuant to the terms of the Joint Declaration and to the Basic Law, both of which provided for the continued application of international agreements to which the People’s Republic of China and which were implemented in Hong Kong, “the provisions of the International Covenant on Civil and Political Rights… as applied to Hong Kong shall remain in force beginning from 1 July 1997.”

(16) The 1997 proposals

68.  In July 1997, The Hong Kong Government issued a “Consultation Document on the Delineation of the Electorate for the New Functional Constituencies and the Election Committee for the First Legislative Council Election of the Hong Kong Special Administrative Region.”  In relation to functional constituencies, it suggested that the electorate of those constituencies should generally include corporate members of major organizations.

(17) The Bill

69.  The Legislative Council Bill was presented to the Provisional Legislative Council on 20 August 1997 and in September 1997, one of the members of the Council moved various Committee Stage Amendments including amendments designed to eliminate corporate electors in functional constituency elections but the President of the Provisional Legislative Council ordered the amendments to be returned on the basis that to eliminate corporate electors in functional constituencies was “not in line with the decision of the Preparatory Committee.”

(18) The Ordinance

70.  On 3 October 1997 the Legislative Council Ordinance, Cap. 542 was enacted.

71.  This is the Ordinance under challenge in these proceedings.

72.  I have referred at an early part of this judgment to its current provisions[28] but to illustrate in historical context setting it suffices here to state that the 1997 Ordinance provided for:

(1)       10 Election Committee seats, 20 geographical constituency seats, and 30 functional constituency seats for the first term Legislative Council designed to hold office from 1998 to 2000;

(2)       territory wide geographical constituencies for which any permanent resident registered as an elector for a constituency was entitled to vote;

(3)       corporate voting within functional constituencies through authorized representatives who were required to be permanent residents and have a substantial connection with the corporate elector; and

(4)       in relation to corporate members entitled to vote, that some were entitled to vote because they were corporations specified by name in a schedule; others by reason of their membership of umbrella organizations named in a schedule.

(19) 1998 to 2000

73.  In accordance with art. 17 of the Basic Law, the Ordinance was reported to the NPCSC.

74.  A Brief Note issued by the Hong Kong Government in 1998 said that functional constituencies were selected “on the basis of the following established guidelines:

•        FCs should be substantial and of importance in the community;

•        FCs should be clearly defined; and

•        FCs should not be based on ideology, dogma or religion.

… Generally speaking:

•        the FCs are composed of major organisations representative of the relevant sectors.  The electorate of the FCs concerned generally includes the corporate members of these major organisations.  Besides, establishments which come under some form of registration or licensing system specific to the relevant sectors are also included.  Each corporate elector has one vote and has to appoint an authorised representative to cast a vote on its behalf in the election.

•        in the case of professional constituencies, they are based on membership of those professions with well established and recognised qualifications, including statutory qualifications.  Each individual elector will have one vote."

(20) 2000 - 2008

75.  The second term Legislative Council election took place in 2000; the third in 2004.  In the 2004 elections, there were no longer any Election Committee seats.

76.  There has been no amendment to the provisions of Annex II of the Basic Law with regard to the formation of the Council after 2007.  In this regard, an Interpretation has been issued by the NPCSC on 6 April 2004 as to the effect of art. III of Annex II to the Basic Law to the effect that that provision means that that method for forming the Council after 2007 may be amended or it may not be amended but, if no amendment is made in accordance with the prescribed procedures, “the provisions relating to the method for forming the third term of the Legislative Council in Annex II” will remain the method applicable for the formation of the Legislative Council and its procedures for voting.

77.  Motions have been introduced to amend the methods for the year 2008 but they did not receive the prescribed two-thirds majority of the Legislative Council.

78.  There was a further election for the Legislative Council in 2008.  There remain 30 geographical constituencies and 30 functional constituencies, including corporate voting for the latter.  In the 2008 elections, 213,777 individuals and 16,084 bodies were registered as electors for the functional constituencies.

The suggested historical rationale

79.  Evidence was filed in the court below in the form of an affidavit by The Secretary for Constitutional and Mainland Affairs.  Much of it deals with the history to which I have referred.

80.  What the Secretary seeks to emphasise is that the functional constituencies system is one that has evolved, which now continues as part of a design of “gradual and orderly progress for the development of the HKSAR’s political system”[29],which presently occupies a place in elections alongside but separate from “the broad participation of the general public [which] is already ensured by the geographical constituencies, which are based on equal suffrage, allowing all qualified inhabitants of a particular district to have one vote[30]”; and that :

“[h]istorically and by design, functional constituencies enable different social, economic, occupational and other sectors instrumental in upholding the economic stability and prosperity of Hong Kong to be represented in the LegCo. Therefore, historically, members in the functional constituencies are returned through voting by the key players and stakeholders in the respective sectors. These key players and stakeholders are identified having regard to the significance of the persons and/or bodies in the sector as well as the circumstances and arrangements of the respective sector. In the case of economic constituencies, this often takes the form of well-established major organisations, and corporate voters would nominate representatives to vote on their behalf. Given the very nature of functional constituencies, the franchise will, by definition, be limited.

…

One of the purposes of functional constituencies is to ensure that the key sectors of the economy are represented and that the significant stakeholders are allowed to vote. Given the dynamic and outward-looking nature of the capitalist economy of Hong Kong, a delicate balance has to be struck between enabling the key and versatile stakeholders of various sectors instrumental in maintaining the economic well-being to participate in the election on the one hand, and avoiding vote-planting on the other.”[31]

Analysis

81.  There can be little doubt, in my opinion, but that save for one interregnum, this history is all of one piece.  It is a history in the course of which functional constituencies, embracing corporate voting, have played a central role and in which functional constituencies have been viewed by policymakers as, in the main, comprising economic and other stakeholders rather than as individual members of professional or economic sectors of society.  The interregnum was the phase of the relatively short-lived Patten changes.

82.  The history which I have summarized is infused with the theme of gradual progress from an appointed legislature to the goal of universal suffrage, a goal deliberately not yet reached.  That theme is evident in the reservations to the ICCPR; the announced intention of their continued application after 1997; Green and White Papers in 1984; the terms of the Basic Law itself in 1990, in particular art. 68; the 1990 Explanation; and the 2004 Interpretation.

83.  It is a history which carries with it an almost uninterrupted and further theme of participation of major organizations, associations and institutions, as electors: in the papers of 1984; in the Annexes to the Basic Law; in the 1990 Explanation; in the 1996 Measures and the 2004 Interpretation.

84.  Finally, there is in the history repeated expression given to the need for a smooth transition.  We see that as early as 1985 in the address of the Chief Secretary; we see it also in the 1990 Decision and the suggested breach of that aim was at the heart of the Declaration by the NPCSC in August 1994.

85.  In the light of this history and the themes which so clearly emerge, it would have been surprising had those who drafted the Basic Law and those who rendered Explanations and Decisions thereafter, intended thereby to promulgate and endorse a change as fundamental as the abolition in 1997 of corporate voting for functional constituencies.  The suggested electoral “new order” which Ms Li says is reflected in the Basic Law would sit incongruously with that history and the policy which created it.

86.  But that is hardly the end of the matter, for the theme and the assumption of continuity is reflected in the Basic Law itself.

87.  Art. 68 is instructive.  It refers to the actual situation in Hong Kong.  The actual situation contemplated was self-evidently that pertaining from time to time and one further sees that art. 68 provides that the method for forming future legislative councils is to be “in accordance with the principle of gradual and orderly progress” with an “ultimate” aim of universal suffrage.  The case advanced by the applicants is at odds with the sense of this provision.

88.  The actual situation in 1990 was one which, for historical reasons thought then still to hold good, accorded electoral privilege to key corporate bodies in the territory.  That that was then thought to hold good for 1997 was made clear by the reference in Annexes I and II to corporate bodies in the context of functional constituencies and by the notion of the “through train”, the perceived derailment of which led to the 1994 Decision of the NPCSC.

89.  The actual situation in Hong Kong in 1996 and 1997 was dictated by the Measures introduced by the Preparatory Committee for the first Legislative Council including, in terms, voting by corporate bodies.  Those measures hardly envisaged the abolition of corporate voting on 1 July 1997, the very same day upon which art. 26 came into effect, yet it is said by the applicants that art. 26 was intended to exclude corporate voting.

90.  It is also said that we may assume that corporate voting was or may have been intended for the first legislature but not beyond.  Yet there is no realistic basis for such a supposition and the drafting of the Basic Law does not support it.  If that had been intended, the Basic Law, let alone subsequent Decisions, would have said so.  The Basic Law did not say so, and the 2004 Interpretation runs contrary to the suggestion.

91.  What then is the meaning of art. 26, purposively construed in context and how can it reasonably be said to sit comfortably with corporate voting?

92.  The judge analysed the effect of art. 26 by saying that “to the extent that article 26 applies to an election or a particular type of election, only permanent residents of the Hong Kong Special Administrative Region shall have the right to vote,”[32] and, after addressing the internal as well as extrinsic aids to construction, concluded that art. 26 was not intended to apply to elections for functional constituencies.

93.  There is, I think, an alternative and tenable view, that art. 26 confers or records one of the rights which is inalienably accorded to permanent residents, namely the right, through elections, to take part in the conduct of public affairs of the Region, which is not to say that it is impermissible in any circumstances to confer the right on anyone else, regardless of the principle of smooth transition, gradual development, the proposed voter’s connection with or contribution to Hong Kong, or the particular nature of the election.  In this regard, I note the following:

(1)       Art. 26 does not say that “only” permanent residents may take part in voting in Hong Kong;

(2)       Art. 26 sits within Chapter III of the Basic Law entitled “Fundamental Rights and Duties of the Residents.”  It deals, in other words, with the rights which are accorded to residents, rights of which they are not to be deprived save, in certain instances, as may lawfully be prescribed.  One of the rights accorded to residents who are permanent residents is the right to take part in the conduct of public affairs through elections.  It is a right of which they shall not be deprived, which is not the same as saying that the legislature is precluded from conferring a right on others to take part in the conduct of public affairs through elections, so long as the bestowal of that benefit on others accords with the Basic Law; and

(3)       Art. 26 is not placed within that Part of the Basic Law entitled “Political Structure”, namely, Chapter IV, the provisions of which (including Annexes I and II) render it clear beyond peradventure that whatever are the rights conferred by art. 26 on permanent residents to take part in public affairs, it is intended to permit others also to take part in certain elections, where permission to others is in accordance with the Basic Law.

94.  There are two decisions which Ms Li says run contrary to this view of the effect of art. 26.

95.  The first is Director of Immigration v Chong Fung Yuen[33].  That was a decision of the Court of Final Appeal which turned upon an interpretation of art. 24(2)(1) of the Basic Law.

96.  Art. 24(2) stipulates who shall be permanent residents of the Region.  One stipulated category was “Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region”, and this fell for interpretation because the Director of Immigration contended that “it did not confer the right upon those Chinese citizens who were born in Hong Kong to illegal immigrants, overstayers or people temporarily residing in Hong Kong.”

97.  Ms Li relies on two passages in the judgment of Li CJ, the first which says that:

“Once the courts conclude that the meaning of the language of the text when construed in the light of its context and purpose is clear, the courts are bound to give effect to the clear meaning of the language. The courts will not on the basis of any extrinsic materials depart from that clear meaning and give the language a meaning which the language cannot bear.”[34]

98.  Ms Li relies on that passage, saying that the clear language of art. 26 cannot carry the meaning which the learned judge in the present case attributed to it, namely, that it restricted the right to vote to permanent residents but only insofar as the article applied to a particular election or form of election.  For reasons which I have provided, the argument does not avail Ms Li.  The true question is whether the meaning of the language of art. 26 “when construed in the light of its context and purpose” has the effect for which Ms Li contends and, for the reasons which I have given, the answer must be No.

99.  The second passage upon which she relies is that which concludes that:

“Article 24(2) defines the persons who are permanent residents of the HKSAR and art. 24(3) confers on them the right of abode. So the purpose of art. 24(2) taken together with art. 24(3) is to confer the right of abode on the persons defined to be the permanent residents of the HKSAR. By the definition, certain persons are included. Those not included would be excluded and in this sense, the purpose of art. 24(2) can be said to be to limit the persons who are permanent residents of the HKSAR and hence its population.” (Emphasis added)[35]

100.  Ms Li says that, by analogy, art. 26 limits for all electoral purposes the category of those who may vote and stand for election and that, on its plain language, it does not permit non-permanent residents to do so.

101.  The problem with this line of argument is that Ms Li is, with respect, not comparing like with like.  Not all the rights conferred on residents by Chapter III of the Basic law can sensibly be read as intended for the exclusive benefit of residents.  So, for example, it cannot have been intended that only Hong Kong residents shall have freedom of conscience (art. 32) or that only residents shall be immune from torture (art. 28).  It can hardly be said in contexts such as those that categories of persons not named are, for that reason, excluded.  Conversely, it is palpably sensible so to assert in the context of a constitutional provision, such as art. 24, which by its nature sets out to define the limits of a category of persons.

102.  Ms Li further relies on a passage in the judgment of Li CJ in Gurung Kesh Bahadur v Director of Immigration[36] in which he said[37] that “[a]part from the right of abode (art. 24) and the rights to vote and to stand for election (art. 26) which are enjoyed only by permanent residents, Chapter III does not distinguish between permanent and non-permanent residents.” (Emphasis added).  Ms Li prayed in aid the emphasized phrase as illustrative of the natural meaning which a reader is likely to give it, but can go no further than that because she recognised, no doubt, that the case did not involve an interpretation of art. 26 and that the passing reference to it was in the context only of rights ensured for permanent as opposed to non-permanent residents.

103.  It is, however, not necessary for the purpose of this case to determine the validity of the judge’s analysis, as against the alternative view which I have postulated as a possibility, because both his analysis and the alternative approach are derived from an examination of art. 26 in full context and lead to the same result.

104.  There is yet a further alternative, a third approach, not canvassed before us but to which I have earlier referred,[38] which is that art. 26 restricts to permanent residents, for the purpose of all elections, the right to cast votes but that this is to be read in conjunction with Annexes I and II so that for the purpose of functional constituencies, the vote of the permanent resident (the authorized representative) may be cast as agent for a prescribed body.  It may be argued that in this way art. 26 is not breached by ss. 25 and 26 of the Ordinance since the vote of a corporate elector is required to be cast by a permanent resident.  Such an approach is unattractive, for it presupposes the triumph of form over substance and opens the door to devaluation of the right in art. 26, once functional constituencies are no longer part of the electoral scene, a result that cannot have been intended.

105.  What is clear is that art. 26 is part of a mosaic which includes arts. 45, 68 and Annexes I and II of the Basic Law the effect of which is that in the early years of Hong Kong’s new constitutional dispensation, there is room for participation through election in public affairs by all permanent residents but for a simultaneous continuation beyond 1997 of corporate participation in such affairs by or through major organizations and associations at elections.

106.  Ms Li further prayed in aid the Hong Kong Letters Patent and the Hong Kong Royal Instructions in force prior to 1 July 1997, pointing to the fact that there was absent from both instruments any provision akin to art. 26 of the Basic Law, thus evidencing, she argued, the intention of the Basic Law to promulgate a “new regime”.  This attempt to draw comfort from silence on the subject matter is, in the event, of no assistance to the applicants’ arguments, for first, it concentrates on art. 26 as if it were the long and the short of the matter which, as I have sought to illustrate, is not the case; second, it overlooks the fact that the Basic Law is replete with much detail not reflected in the instruments; and third, it is to be noted that the Letters Patent required the implementation through the laws of Hong Kong of the provisions of the ICCPR “as applied to Hong Kong”, that phrase carrying with it the reservation relating to universal suffrage.

107.  There was some attempt to repeat an argument advanced before the Court of First Instance, based upon the suggested Chinese meaning of the phrase in Annex II which, in the English version reads “the delimitation of functional sectors and corporate bodies”.  The argument is that the Chinese version does not mean “corporate bodies” but, rather, “statutory bodies”.  This interpretation is not accepted by the respondent and it would be rather odd, indeed meaningless in context, if that interpretation were correct.  But as the judge pointed out with impeccable logic, such a restrictive meaning would not assist the applicants because it would still undermine the applicants’ argument that the Basic Law intended to restrict electoral power to natural persons[39].

108.  For the reasons which I have provided, I reject the argument that the Basic Law prohibits corporate bodies from voting at functional constituency elections.

Discrimination

109.  The discrimination argument advanced by Ms Li falls within a narrow compass.  It is based upon art. 25 of the Basic Law, which provides that all Hong Kong residents shall be equal before the law and upon art. 1 of the Bill of Rights (a reflection of art. 2 of the ICCPR) that the rights recognised in the Bill of Rights “shall 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.”

110.  The argument is that there is inherent in the provisions under the Ordinance for voting in functional constituencies discrimination against individuals who have not the financial means to own and control companies so that the forbidden distinction is in this case based on property.

111.  The problem with this argument is that it proceeds on a false premise.  The qualification for voting, or empowering an authorised representative to vote on behalf of a body, is not wealth or the ability to form a company at a given point in time, but rather the recognition as a key player or stakeholder within certain sectors of society.  The mere formation of a corporate body does not of itself come anywhere near qualifying that corporate body for membership of an umbrella organisation or for specification as a functional constituency elector.

112.  It is in any event difficult to see:

(1)       how the applicant Lo seeks to benefit from the complaint since in the constituency to which he says he might belong, there is room for individual as well as corporate electors; and

(2)       how the complaint based on discrimination, even if it were meritorious as a matter of law, could properly lead to a declaration which rendered corporate voting impermissible.  As the judge correctly remarked, it “could only lead to those individuals who would otherwise not be entitled to be registered as an elector in the relevant functional constituencies to be registered alongside limited companies.”[40] That is not the relief sought.

113.  We have been treated in considerable detail by Mr Pun to an analysis of the suggested oddities or inequities internal to the functional constituency system itself.  This took the form of an attack, first, on the 12-month operation rule.  The rule is said to be inequitable because it confers easier voter qualification for corporate bodies than for individuals and susceptible to abuse because of the danger of what is known as “packing”, whereby a corporation might be in a position to direct the votes of subsidiaries over which it has effective control.  There is secondly an attack on the lack of restrictions as to who may be chosen as an authorised representative and a particular attack on the suggested ease with which a corporate body with scant Hong Kong connection in terms of its controlling minds might nonetheless become an elector, a contrast with the pre-condition of permanent residence in the case of individual electors.

114.  There are two problems with this line of attack. The first is that the only relief sought is a declaration that ss. 25 and 26 of the Ordinance “to the extent that they provide for voting by corporations in elections for the Legislative Council” are unconstitutional.  In other words, the relief sought is a declaration that corporate voting is itself unconstitutional.  There is no declaration sought that if corporate voting is constitutional, the pre-conditions for corporate eligibility are, for specified reasons, unlawful.  Had there been, one would then have expected a significant body of evidence filed by the respondent seeking to justify the pre-conditions.  It is not, in my judgment, now open to the applicants to advance this line of attack.

115.  The second fundamental problem is that neither applicant is affected by the suggested internal inequities because neither is an elector and neither seeks a declaration entitling him to be an elector.

Conclusion

116.  For the reasons which I have provided, I would dismiss this appeal and make an order nisi that the applicants pay the respondent’s costs of the appeal, to be taxed if not agreed.

Hon Hartmann JA:

117.  I agree in all respects with the judgment of the Vice President and have nothing to add.

Hon Fok J:

118.  I also agree.

Hon Stock VP:

119.  Accordingly, the appeal is dismissed.  There will be an order nisi that the applicants do pay the respondent’s costs of the appeal, to be taxed if not agreed.