郭卓堅 V. 特首林鄭月娥女士

HCAL 542/2021

[2021] HKCFI 1085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 542 OF 2021

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D E C I S I O N

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1.  In this application for leave to apply for judicial review, the Applicant seeks to challenge the decision of the Chief Executive to present the “Improving Electoral System (Consolidated Amendments) Bill 2021” (“the Bill”) to the Legislative Council on or about 13 April 2021. The Applicant contends that if the Bill is passed into law:

(1)  it will be contrary to Article 21, sub-paragraph (b) of the Hong Kong Bill of Rights, namely, the right of every Hong Kong permanent resident to, inter alia, vote and to be elected at genuine periodic elections which shall be by universal suffrage;

(2)  the Chief Executive will be in a position of conflict of interest, in view of the fact that (i) the Election Committee (“EC”), with (inter alia) the responsibility to elect the CE, will comprise, amongst others, persons returned by election of voters who are themselves members of various area or district committees appointed by the Government, and (ii) the chairman and members of the Candidate Eligibility Review Committee (“the CERC”), who will be empowered to review and confirm the eligibility of any candidate seeking to stand in, inter alia, CE elections, will be appointed by the Chief Executive;

(3)  the proposal that no legal proceedings may be instituted in respect of a decision made by the CERC on the eligibility of a candidate for member of the EC, the office of the CE or member of the Legislative Council pursuant to the opinion of the Committee for Safeguarding National Security of the HKSAR is contrary to procedural fairness; and

(4)  the Chief Executive has acted contrary to -

(a)     Article 2 of the Basic Law, which provides that the HKSAR shall exercise a high degree of autonomy;

(b)     Article 45(2) of the Basic Law, which provides that the method for selecting the Chief Executive shall be specified in the light of the actual situation in the HKSAR and in accordance with the principle of gradual and orderly progress (循序漸進的原則), with the ultimate aim of selecting the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures; and

(c)     Article 68(2) of the Basic Law, which provides that the method for forming the Legislative Council shall be specified in the light of the actual situation in the HKSAR and in accordance with the principle of gradual and orderly progress (循序漸進的原則), with the ultimate aim of electing all the members of the Legislative Council by universal suffrage.

2.  The Bill is intended to implement the decision of the National People’s Congress (“NPC”) on “Improving the Electoral System of the Hong Kong Special Administrative Region” made on 11 March 2021 (“the 3.11 NPC Decision”), and the decision of the Standing Committee of the National People’s Congress (“NPCSC”) to amend Annex I and Annex II of the Basic Law made on 30 March 2021 (“the 3.30 NPCSC Decision”).  Those decisions provide for various matters, including the reconstitution of the EC, the powers and functions of the reconstituted EC, the reconstitution of Legislative Council, the establishment of the CERC, and the exclusion of legal proceedings to challenge decisions made by the CERC.

3.  In 郭卓堅 v 林鄭月娥特首連同行政會議成員, HCAL 453, 455 and 458 & 460 of 2017 (22 September 2017), this court held that a challenge to the constitutionality of the then Proposed Co-location Arrangement, which had not yet been crystallised into a bill before the Legislative Council, by way of judicial review was premature.  The same reasoning applies to a bill which has been presented to the Legislative Council but has not yet been passed into law, or the antecedent decision of the Government to introduce a bill to the Legislative Council.  It is not for this court to speculate on whether the Bill, in its current form, will become law without amendments.  There is no good reason why an application for judicial review of the decision of the Government to present the Bill to the Legislative Council should be entertained at this stage.

4.  In any event, the prospect of any challenge to the “Improving Electoral System (Consolidated Amendments) Ordinance 2021” should the Bill be passed into law in the various aspects complained of is highly questionable.

(1)  Insofar as such law is based on the Amended Annex I and Annex II to the Basic Law, there would plainly be no basis to challenge its constitutionality.

(2)  Insofar as such law is based on the 3.11 NPC Decision and/or the 3.31 NPCSC Decision, in HKSAR v Lai Chee Ying [2021] HKCFA 3, the Court of Final Appeal, in an unanimous judgment, held that the court has no power to review the constitutionality of the National Security Law which was promulgated pursuant to a decision of the NPC dated 28 May 2021 and the NPCSC’s formulation and listing of that law in Annex III of the Basic Law.  At §32 of the judgment of the Court of Final Appeal, it was said that “there is no room for holding that the NSL or any of its provisions are unconstitutional or incompatible with the Basic Law or with the ICCPR as applied to Hong Kong as that would amount to a challenge to legislative acts of the NPC and NPCSC done in accordance with the provisions of the Basic Law and the procedure therein”.  At §37, the Court of Final Appeal further stated that: “In our view, in the light of Ng Ka Ling v Director of Immigration (No 2), the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR, done in accordance with the provisions of the Basic Law and the procedure therein, are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic Law or the ICCPR as applied to Hong Kong.”  There is no further guidance on what may come within the scope of “legislative acts of the NPC and NPCSC done in accordance with the provisions of the Basic Law and the procedure therein”, and whether there could be a distinction drawn between (i) a legislative act of the NPC/NPCSC and (ii) a “decision” of the NPC/NPCSC not amounting to a legislative act.  Nevertheless, the judgment of the Court of Final Appeal in Lai Chee Ying is binding on this court.  The broad reasoning of the Court of Final Appeal in Lai Chee Ying would indicate that it is not open to the Hong Kong courts to review the constitutionality of the 3.11 NPC Decision or the 3.31 NPCSC Decision even assuming that they do not amount to “legislative acts”.  Hence, to the extent that the provisions of the Bill are based upon those decisions, it is unlikely that there could be any scope for constitutional review of the relevant provisions of the resulting Ordinance should the Bill be passed into law by the Legislative Council.

(3)     Barring constitutional review, there would also be no possible ground to judicially review an Ordinance, being in the nature of primary legislation, based on traditional grounds of judicial review.

5.  In all, the intended application for judicial review is not reasonably arguable, and has no realistic prospect of success. The application for leave to apply for judicial review is therefore dismissed.