CHAN YU NAM v. SECRETARY FOR JUSTICE

HCAL 32/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 32 OF 2009

____________

____________

AND

HCAL 55/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 55 OF 2009

____________

BETWEEN

____________

(Heard Together)

_______________

J U D G M E N T

_______________

1        Introduction

1.  The Court has heard these two applications for judicial review together.  They both challenge the constitutional legitimacy of corporate voting in elections for the functional constituencies of the Legislative Council.

2.  In a nutshell, the applicants argue that article 26 of the Basic Law (and article 21(b) of the Hong Kong Bill of Rights) give the right to vote to permanent residents of the Hong Kong Special Administrative Region only.  Corporations are not natural persons and can never be a permanent resident of the Special Administrative Region.  Hence they do not have the right to vote, irrespective of whether their directors or shareholders are permanent residents of the Region.  It is therefore unconstitutional for corporations to be allowed to vote in elections for the functional constituencies of the Legislative Council. 

3.  The applicants also run a subsidiary argument that in any event, corporate voting is discriminatory in nature.  It offends the right to equality as well as the protection against discrimination provided in the Basic Law and the Bill of Rights.

4.  The applicants therefore seek a declaration that the relevant provisions in the Legislative Council Ordinance (Cap 542) are unconstitutional, insofar as they provide for corporate voting.  The applicants, a taxi driver and a renovation worker respectively, who are not entitled to vote at any elections for functional constituencies, do not seek any relief to the effect that they be allowed to vote in those elections.

2        Historical background

5.  In order to consider the present constitutional challenge in its proper context, it is necessary to give a brief account of elections for functional constituencies in general and of corporate voting in particular.

2.1    Pre-1985 position

6.  Elections for important public offices in Hong Kong can be traced to the Urban Council elections in 1953.  The first District Board elections were held in 1982.  In respect of the Legislative Council, prior to 1985, all members of the Legislative Council were appointed.  The Council was then composed of the Governor (as President), three ex officio members, 29 unofficial members and 15 official members.

7.  In July 1984, the Administration published a Green Paper entitled “The Further Development of Representative Government in Hong Kong”.  The Green Paper stated that the 29 unofficial members were chosen from two main groupings, or constituencies.  They represented two different types of shared interests among the people of Hong Kong, namely, those arising from their place of residence; and those arising from their professions and occupations.  These groupings could be described as geographical constituencies and functional constituencies respectively.  The geographical constituencies were based on institutions such as the Urban Council, the District Board, the Heung Yee Kuk and Rural Committees.  The functional constituencies were based on people’s common interests such as, commerce, industry, law, medicine, engineering or architecture, finance, education, trade unions or workers and social work.

8.  Up to that time, official members were appointed by the Governor on the basis of their merit and standing, rather than specifically to represent the various constituencies.  The 1984 Green Paper proposed that the informal system of selecting members from a wide range of functional constituencies at the time, which had been developed over many years and had provided, it was said, much specialist knowledge and valuable expertise, should be developed into a more formal representative system.  This was to be achieved 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.

9.  In September 1984, the Governments of the United Kingdom and the People’s Republic of China initialled the Sino-British Joint Declaration on the Future of Hong Kong.  The Joint Declaration provides, amongst other things, that after establishment of the Hong Kong Special Administrative Region in 1997, the legislature “shall be constituted by elections”: Para I(3) in Annex I of the Joint Declaration.  The Joint Declaration was formally signed on 19 December 1984.

10.  In November 1984, the Administration published a White Paper.  Prior to publishing the White Paper, the Administration had conducted a further examination to identify the relevant functional constituencies; the object of the exercise had been to ensure that those major sectors of community having common social, economic, and occupational interests, would be adequately represented.  Based on the results of the examination, the Administration concluded and set out in the White Paper that those shared interests would be best served initially by the election of 12 members from 9 functional constituencies, namely, commercial, industrial, financial, labour, social services, education, legal, medical, and engineers and associated professions.  Importantly, the 1984 White Paper indicated the main guidelines which had been applied by the Administration in determining the composition of the 9 functional constituencies and eligibility to vote in them:

(1) In the case of economic and social constituencies, they would be based on well-organised major organisations, associations, and institutions with a territory-wide coverage.  The lists of voting members of these organisations etc would be adopted as the electoral rolls for these constituencies.  Corporate members would nominate representatives to vote on their behalf.

(2) In the case of professional constituencies, they would be based on membership of those professions with well-established and recognised qualifications.  The electoral rolls for those constituencies would be based on either the membership lists of the various major professional bodies and institutions or on the statutory registers of members of those professions.

11.  Proposals in the 1984 White Paper were implemented by amending provisions in the Letters Patent and by enacting the Legislative Council (Electoral Provisions) Ordinance (Cap 381), which came into effect on 6 April 1985.  Under Cap 381, 12 seats in the Legislative Council would be returned by the functional constituencies and another 12 seats would be returned by the representatives from the District Boards and Municipal Councils. 

12.  Furthermore, the Legislative Council (Electoral Provisions) (Registration of Electors and Appointment of Authorised Representatives) Regulations (Cap 381A) was made under Cap 381 on 12 April 1985.  Cap 381A prescribed, amongst other things, the legal framework for the appointment of authorised representatives by corporate electors to vote on their behalf in the functional constituencies.

2.2  1985-1990

13.  Elections for the functional constituencies were duly held in 1985 in accordance with the above provisions, and the Legislative Council had its first batch of elected legislators returned by the functional constituencies in September of that year.

14.  In the meantime, the drafting of Basic Law had begun (in July 1985), following the signing of the Joint Declaration.  The drafting process took over four years to complete.  It was promulgated on 4 April 1990, and was to come into force in Hong Kong on 1 July 1997 upon the establishment of the Hong Kong Special Administrative Region.

15.  Whilst the Basic Law was being drafted, following the introduction of elections for functional constituencies in the 1985 Legislative Council Election, there were discussions within the community on the introduction of “direct” elections in geographical constituencies in future elections.

16.  Meanwhile, in its Green Paper entitled “The 1987 Review of Development in Representative Government”, the Administration set out, amongst other things, four guidelines in considering whether an additional group or groups might be included as a functional constituency:

(1) functional constituencies should be substantial and of importance in the community;

(2) any new constituency should be clearly defined to avoid difficulties over who qualifies for inclusion and how the electorate is prescribed;

(3) constituencies should not be based on ideology, dogma or religion; and

(4) particular groups or bodies should not be represented by more than one functional constituency.

17.  The White Paper published in February 1988 concluded that there was a good case for limited extension in 1988 of the functional constituency system, using the four guidelines to decide whether an additional group or groups might be included in the functional constituencies for the composition of the Legislative Council in 1988.  The number of Legislative Council members to be returned by functional constituencies in 1988 was, in those circumstances, marginally increased from 12 to 14.  The relevant legislation was amended accordingly. 

18.  In the 1988 Legislative Council Election, 14 members were returned by their respective functional constituencies.  In 1988, there were as yet no direct elections for geographical constituencies.

2.3      The Basic Law 1990

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

20.  Article 2 of the Basic Law provides that the National People’s Congress authorises the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, in accordance with the provisions of the Basic Law.

21.  Article 3 goes on to provide that the executive authorities and legislature shall be composed of permanent residents of Hong Kong in accordance with the relevant provisions of the Basic Law.

22.  Article 17 specifically vests the Special Administrative Region with legislative power. 

23.  Chapter III of the Basic Law sets out the “Fundamental Rights and Duties of the Residents” of the Special Administrative Region.  Article 26 specifically provides:

“Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law.”

24.  Section 3 in Chapter IV (concerning political structure) of the Basic Law deals specifically with the legislature.

25.  Article 67 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 members of the Legislative Council of the Region, provided that the proportion of such members does not exceed 20% of the total membership of the Council.

26.  Article 68 reads:

“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 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 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: ‘Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and Its Voting Procedures’.”

27.  Annex II, entitled “Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and Its Voting Procedures”, is divided into three parts.  Part I prescribes the method for the formation of the Legislative Council.  Part II provides for the procedures for voting on bills and motions in the Legislative Council.  Part III sets out the method for the formation of the Legislative Council and its voting procedures subsequent to the year 2007.  It is helpful to set out the Annex in full:

“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 and passed by the Legislative Council.

II. Procedures for voting on bills and motions in the Legislative Council

Unless otherwise provided for in this Law, the Legislative Council shall adopt the following procedures for voting on bills and motions:

The passage of bills introduced by the government shall require at least a simple majority vote of the members of the Legislative Council present.

The passage of motions, bills or amendments to government bills introduced by individual members of the Legislative Council shall require a simple majority vote of each of the two groups of members present: members returned by functional constituencies and those returned by geographical constituencies through direct elections and by the Election Committee.

III.   Method for the formation of the Legislative Council and its voting procedures subsequent to the year 2007

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.”

2.4      The Decision (1990)

28.  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 Decision”), referred to in para 1 of Part I of Annex II, was adopted by the Seventh National People’s Congress at its Third Session on the same day as it adopted the Basic Law.  The more relevant part of the Decision reads:

“2.   Within the year 1996, the National People’s Congress shall establish a Preparatory Committee for the Hong 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. …

……

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 of the Hong Kong Special Administrative Region, those of its members who uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, and who meet the requirements set forth in the Basic Law of the Region 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 Administrative Region shall be two years.”

2.5      The Explanations (1990)

29.  In his speech entitled “Explanations on ‘The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Draft)’ and Its Related Documents” (“the Explanations”) delivered by Mr Ji Pengfei, Chairman of the Drafting Committee for the Basic Law, to the Third Session of the Seventh National People’s Congress on 28 March 1990, Mr Ji explained:

“The political structure of the Hong Kong Special Administrative Region should 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 of the Basic Law contain the following major provisions concerning the political structure of the Hong Kong Special Administrative Region:

……

(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 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.”

2.6      1990-1991: Further electoral reforms

30.  Also in 1990, the Electoral Provisions Ordinance (Cap 367), which used to provide for the election of members of the Urban Council and that of the District Boards, was amended to cover elections for Legislative Council geographical constituencies as well, paving the way for the first-ever direct elections for the geographical constituencies of the Legislative Council.  Those elections were held in 1991. 

31.  At the same time, the number of members returned by the functional constituencies was increased from 14 to 21 in the 1991 Legislative Council Election.

2.7      Hong Kong Bill of Rights (1991)

32.  In 1991, the Hong Kong Bill of Rights Ordinance (Cap 383) was enacted.  Essentially, the Ordinance incorporated the relevant provisions in the International Covenant on Civil and Political Rights (“ICCPR”) into domestic law. 

33.  However, it should be noted that even prior to the enactment of the Ordinance, at least at the international law level, the ICCPR had been extended to Hong Kong by the Government of the United Kingdom since 1976.  In the Explanations given by Mr Ji, it was recognised, in the context of article 39(1) of the Basic Law which gives the provisions in the ICCPR constitutional entrenchment, that even at the time of the promulgation of the Basic Law (ie one year before the enactment of the Hong Kong Bill of Rights Ordinance), the ICCPR had already been applicable in Hong Kong. 

34.  However, the extension of the ICCPR to Hong Kong by the British Government was subject to its reservation of the right not to apply article 25(b) of the ICCPR, insofar as it may require the establishment of an elected Executive or Legislative Council in Hong Kong.  Article 25(b) of the ICCPR is equivalent to article 21(b) of the Hong Kong Bill of Rights.  Article 21 concerns the right of permanent residents to participate in public life.  It reads:

“Every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions-

(a)     to take part in the conduct of public affairs, directly or through freely chosen representatives;

(b)     to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c)     to have access, on general terms of equality, to public service in Hong Kong.”

35.  Section 13 of the Hong Kong Bill of Rights Ordinance provides specifically that article 21 of the Hong Kong Bill of Rights does not require the establishment of an elected Executive or Legislative Council in Hong Kong.

2.8      1992-1997: The Patten reforms and the halting of the “through train”

36.  Apparently, all went well up to that point.  Indeed it should be noted that in para 6 of the Decision, it was actually provided and anticipated that if the composition of the last Hong Kong Legislative Council before the establishment of the Special Administrative Region was in conformity with the relevant provisions of the Basic Law and the Decision, those serving in the last Legislative Council before the resumption of the exercise of sovereignty could become members of the first Legislative Council of the Special Administrative Region.  This was the so-called “through train” concept. 

37.  However, it was not to be.  The Hong Kong Government, led by Hong Kong’s last Governor Chris Patten, introduced substantial electoral reforms to the 1995 Legislative Council Election.  Nine new functional constituencies were created to expand the functional constituency franchise to include the entire workforce of Hong Kong with potentially 2.7 million voters.  Some electoral divisions in five functional constituencies were chosen to form ten new functional constituencies.  In addition, all forms of corporate voting in elections for functional constituencies were replaced by individual voting.  Instead of allowing a corporate elector to vote, the new regime conferred the right to vote on up to six corporate directors of that former corporate elector.

38.  All this gave rise to great controversies both within Hong Kong and at the diplomatic level.  The Standing Committee of the National People’s Congress took the view that the new electoral arrangement contravened the Joint Declaration, the Basic Law and the Decision.  On 31 August 1994, the Standing Committee decided that “the last Hong Kong British Legislative Council” would terminate on 30 June 1997.

39.  In the light of these developments, and of the necessity for having a legislature in the Special Administrative Region upon its establishment on 1 July 1997, the Preparatory Committee, formed pursuant to para 2 of the Decision to prepare the establishment of the Region and to prescribe the specific method for forming the first Legislative Council, decided, on 24 March 1996, to set up the Provisional Legislative Council.  In October 1996, the Preparatory Committee adopted the “Measures for the Formation of the Provisional Legislative Council of the Hong Kong Special Administrative Region”. 

2.9      The Measures for forming the 1^st Legislative Council (1997)

40.  More significantly for our present purposes, on 23 May 1997, the Preparatory Committee further adopted the “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”).  Article 5 of the Measures prescribed the delimitation of the functional constituencies.  In short, the 20 pre-1995 reform functional constituencies were to be reinstated, and they would return 21 seats in the first Legislative Council of the Special Administrative Region.  The remaining 9 seats would go to 9 functional constituencies to be chosen out of the 15 constituencies identified by the Preparatory Committee in the Measures.

41.  Most significantly for our present purposes, corporate voting, which had been abolished as part of the Patten reforms, was resurrected.  Article 6 of the 1997 Measures provided:

“The election method for the functional constituencies shall be determine[d] 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 [and] individual members, each corporate [member and each] individual [member] shall cast one vote.”[1]

42.  On 3 July 1997, the Standing Committee of the National People’s Congress formally confirmed that the Preparatory Committee had satisfactorily completed its task of preparing for the establishment of the Hong Kong Special Administrative Region in accordance with the Basic Law as well as the various decisions of the National People’s Congress and of the Standing Committee thereof. 

2.10    The Legislative Council Ordinance (1997)

43.  Understandably, under the circumstances described above, the Provisional Legislative Council, when enacting the Legislative Council Ordinance (“the Ordinance”) on 3 October 1997, duly took into account what was provided in the Measures.  Apart from some tightening measures, the Ordinance essentially adopted the “traditional” concept and criteria for delineating the electorate of functional constituencies set out in the 1984 and 1988 White Papers.  It specified the arrangement for returning 10 Election Committee seats, 20 Geographical Constituency seats and 30 Functional Constituency seats for the first Legislative Council to hold office in the period from 1998 to 2000 (as per the term set out in article 69 of the Basic Law).

44.  Section 20 of the Ordinance provides for the establishment of 28 functional constituencies.  They are set out in section 20(1).  It is instructive to set out the long list in full to see precisely what functional constituencies there are in Hong Kong:

“(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.”

45.  Sections 20A to 20ZB then go on to set out the composition of each of the 28 functional constituencies.  As has been mentioned, some of these functional constituencies are only composed of corporate bodies, some comprise only individuals, while others have both corporate bodies and individuals as constituents.  For instance, the applicant in HCAL 32/2009, a taxi driver, claims that he belongs to the “transport functional constituency”.  According to section 20D, the transport functional constituency is composed of the bodies named in Schedule 1A to the Ordinance only.  It should be noted that in the Ordinance, “body” means an incorporated or unincorporated body, and includes a firm or a group of persons who are associated with each other through a shared relevant interest: section 3(1) of the Ordinance.  Therefore, in Schedule 1A, one cannot find any individuals.  There are at present 198 bodies named in Schedule 1A, ranging from the Airport Authority, shipping and ferry companies, taxi associations, the Hong Kong Automobile Association, bus companies, stevedore and container terminal companies, to public carpark companies, to name just a few.  No individuals are included. Obviously, these bodies represent a variety of interests that have something to do with “transport” in Hong Kong.

46.  One may also take the case of the applicant in HCAL 55/2009, a renovation worker, as a further example.  He claims that he should belong to the real estate and construction functional constituency.  According to section 20N:

“The real estate and construction functional constituency is composed of – 

(a)     members of The Real Estate Developers Association of Hong Kong entitled to vote at general meetings of the Association; and

(b)     members of The Hong Kong Construction Association, Limited entitled to vote at general meetings of the Association; and

(c)     members of The Hong Kong E&M Contractors’ Association Limited entitled to vote at general meetings of the Association.”

47.  According to the evidence, the three named associations have both individual and corporate members.  There are various requirements for obtaining membership in the associations.

48.  Section 25 sets out the eligibility to be registered as an elector in elections for functional constituencies.  Section 25(1)(a) essentially defines the eligibility of an elector for a functional constituency by reference to the composition of the various constituencies set out in section 20A to 20ZB.

49.  Section 25(1)(b) lays down an additional requirement that if the person sought to be registered as an elector for a functional constituency is a natural person, he must either be registered as an elector for a geographical constituency, or is eligible to be registered as such an elector and has made an application to do so.

50.  Section 25(2) and (3) essentially provide for the registration as an elector by a natural person in only one functional constituency of his choice (subject to some exceptions) if he would otherwise be eligible to be registered in two or more functional constituencies.  Section 25(4), (5) and (6) stipulate a qualifying period of 12 months, so that a body or a natural person would become eligible for registration as an elector for a functional constituency only if the same has been a relevant member for the 12 months immediately before making the application for registration, and in the case of a body, only if it has been operating for the 12 months immediately before making the application for registration.

51.  Section 26 of the Ordinance requires a corporate elector to select one eligible person to be its authorised representative for the purpose of casting its vote at an election.  Amongst other requirements, a person is eligible to be an authorised representative of a corporate elector if he is registered, or is eligible to be and has applied to be registered, as an elector for a geographical constituency, and has a substantial connection with the corporate elector.  However, it should be immediately pointed out that such an authorised representative only casts the vote as a representative of the relevant corporate elector.  The vote cast is the vote of the corporate elector.  The authorised representative only acts as a proxy or messenger for delivering the corporate vote.  He is expected and supposed to vote in accordance with the wish of the corporate elector.

52.  It is also noteworthy that section 27 provides that a natural person is not eligible to be registered as an elector for a constituency unless the person is a permanent resident of Hong Kong.  This provision is not restricted to elections for geographical constituencies.  It also applies to elections for functional constituencies, and indeed has the same effect as section 25(1)(b) already mentioned.  Prima facie, it is made in accordance with article 26 of the Basic Law to which I will presently turn.

2.11    Post-1997 developments

53.  Pursuant to the provisions in Annex II of the Basic Law, members returned by the Election Committee have disappeared from the Legislative Council since its third term starting in 2004.  Since then, the Legislative Council has been and is still composed of 30 members returned by functional constituencies at elections involving corporate voting, and another 30 members by geographical constituencies at direct elections. 

54.  It may be added that in the 2008 Legislative Council Election, as regards elections for functional constituencies, there were 213,777 individual electors registered, whereas there were 16,084 bodies registered as electors.

55.  As is only too well-known, over the years, Hong Kong has witnessed important public debates over the composition and method of election of the Legislative Council, particularly when para 1 in Part I of Annex II of the Basic Law only provides for the method for the formation of the Legislative Council up to the third term, and Part III of Annex II leaves the door open for amending the provisions of the Annex as regards the method for the formation of the Legislative Council “after 2007”.

56.  All this has led the Standing Committee of the National People’s Congress to issue an Interpretation on 6 April 2004 and another Decision on 29 December 2007 to deal with, amongst other things, the method for forming the Legislative Council as provided for in Annex II of the Basic Law and the possibility of amending the method laid down therein.  Whilst the Interpretation and Decision have great significance and importance in Hong Kong for various reasons, for our present purposes, it should be noted that they do not specifically or expressly deal with the question of corporate voting in elections for functional constituencies. 

3        Scope of present constitutional challenge

57.  In these two applications for judicial review, the applicants do not seek to challenge the constitutionality of functional constituencies or the elections for them.  The only subject of challenge is that of corporate voting.  The only substantive relief prayed for in the papers is a declaration that sections 25 and 26 of the Ordinance, to the extent that they provide for voting by corporations in elections for the Legislative Council, are inconsistent with the provisions in the Basic Law and the Hong Kong Bill of Rights, and are unconstitutional and of no effect.

58.  Despite their claims that they belong or should belong to the transport and the real estate and construction functional constituencies respectively, the two applicants do not seek any relief to the effect that they be allowed to be registered as an elector in elections for those two functional constituencies.

4        Primary argument – only permanent residents may vote

4.1      Applicants’ contention

59.  The primary argument of the applicants is based on article 26 of the Basic Law and article 21(b) of the Hong Kong Bill of Rights.  Ms Gladys Li SC (Ms Jocelyn Leung with her) for the applicant in HCAL 32/2009 submits that the two articles, on their proper construction,

(1)     apply only to natural persons;

(2)     mean that no one, other than permanent residents of the Hong Kong Special Administrative Region, have the right to vote in elections for the Legislative Council – whether they be elections for the geographical constituencies or elections for the functional constituencies.

60.  Mr Hectar Pun (Mr Newman Lam with him), appearing for the applicant in HCAL 55/2009, adopts the same argument.

4.2      Nature of the right to vote

61.  Point (1) above is plain and uncontroversial.  On their wording, quite clearly both articles refer to natural persons only. 

62.  I am also with Ms Li on point (2) to this extent, namely, that insofar as it applies to a particular election or form of election, the effect of article 26 is to exclude all those who are not permanent residents of the Special Administrative Region from having a right to vote.  See the passing observation of the Court of Final Appeal in Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480, 485, para 3[2]; and cf Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, 231F-G.  Allowing any other persons, whether natural persons or legal entities, to vote would amount to a dilution of the right given to permanent residents to vote in the same election.  It would amount to an infringement of a permanent resident’s right to vote. 

63.  However, as has been pointed out in Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166, 186-187, paras 55-62, the right to vote in article 26 is not an absolute right.  When read together with article 39 of the Basic Law and article 21(b) of the Hong Kong Bill of Rights, the right to vote may be restricted or otherwise interfered with if (1) the restriction or interference is “prescribed by law”; and (2) such restriction or interference does not contravene article 21 of Hong Kong Bill of Rights.

64.  The correct test to apply to determine a permissible restriction or interference is the proportionality test.  Chan Kin Sum, at pp 187-194, paras 63-77.

65.  In short, to the extent that article 26 applies to an election or a particular type of election, only permanent residents of the Special Administrative Region have the right to vote.  Any attempt to give to others the same right to vote must be justified in terms of the proportionality test.

66.  Indeed, during argument, substantial efforts have been spent by the applicants on the question of justification.  The Court has heard arguments on whether the Government could justify, in terms of the proportionality test, the giving of rights to vote to corporate bodies in elections for functional constituencies, in dilution or denial of the permanent residents’ rights to vote in those elections.

4.3      A crucial prior question

67.  However, in my view, there is a prior question that must first be addressed.  As I see it, lying at the heart of the constitutional challenge, is whether article 26 applies to the type of election that the Court is concerned with, namely, elections for functional constituencies. 

68.  If article 26 applies to elections for functional constituencies, one is, of course, required to consider the justification for corporate voting in terms of the proportionality test.  However, the antecedent question here is whether article 26 applies, and is intended by the Basic Law to apply, to elections for functional constituencies at all.  If the answer is in the negative, and article 26 is not engaged, the question of justification simply does not arise.

69.  I have set out in some length above the origin and development of elections for functional constituencies in Hong Kong.  In my view, it has a direct bearing on this prior question of applicability.

4.4      Principles of interpretation – importance of context and purpose

70.  As has been observed in Luk Ka Cheung v Market Misconduct Tribunal [2009] 1 HKLRD 114, 130, para 31, “each constitution is the child of its environment”.  The Basic Law is no exception.  I will not repeat the principles of interpretation of the Basic Law.  This Court has had the opportunity to summarise those principles in the recent case of Cheng Kar Shun v Honourable Li Fung Ying [2009] 4 HKC 204, 230-232, paras 89-92, which were based on leading Court of Final Appeal authorities.  Suffice it to say, in interpreting the Basic Law, a purposive approach is to be adopted.  The court 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 court must avoid a literal, technical, narrow or rigid approach.  It must consider the context, which is to be found in the Basic Law itself as well as the relevant extrinsic materials including the Joint Declaration.  Furthermore, because the context and purpose of the Basic Law were established at the time of its enactment in 1990, the extrinsic materials relevant to its interpretation are, generally speaking, pre-enactment materials, that is, materials brought into existence prior to or contemporaneous with the enactment of the Basic Law.  Assistance may also be gained from any traditions and usages that may have given meaning to the language used. 

4.5      Corporate voting was there from day one

71.  In order to properly construe article 26 of the Basic Law, one must remember that in 1990, not only functional constituencies, but also elections for seats in the Legislative Council, were recent creatures.  Prior to 1985, all Legislative Council members were appointed members.  There were no elections for the Legislative Council.  Elections, based on geographical constituencies, were simply restricted to the Urban Council and the District Boards.

72.  Equally significantly, direct elections for geographical constituencies of the Legislative Council did not take place until one year after the promulgation of the Basic Law.

73.  It is a fair statement to make that back in 1990, Hong Kong was still very much in its infancy of democracy. 

74.  As regards elections for functional constituencies, it is important to note that corporate voting was there from day one.  The reason for corporate voting is not difficult to understand.  According to the evidence, the functional constituencies have evolved over the years “as a means of enabling, for example, important sectors in Hong Kong’s industrial and commercial activities and also its leading professionals to be appropriately represented in the [Legislative Council]”.  Functional constituencies had its origin in the replacement of the system of appointment of unofficial members of the Legislative Council.  According to the evidence, those unofficial members were appointed by the Governor on the basis of their merit and standing, rather than specifically to represent the various constituencies.  Functional constituencies came into being as a more systematic way of representing the various functional constituencies’ interests in the Legislative Council.  In turn, those interests represented, at least in terms of political theory, people’s common interests in the society.  Elections for functional constituencies were developed as a formal representative system to replace the previous informal system of selecting members from a wide range of functional constituencies under the appointment system. 

75.  That being the case, corporate voting is not surprising at all.  In many of the functional constituencies or the economic or social interests that they represent, the key players and stakeholders are corporate bodies.  It is simply natural, therefore, for corporate bodies, alongside with, or as opposed to, individuals, to be given the right to vote in the relevant elections.  That has been the case from day one.  As the affidavit of the Secretary for Constitutional and Mainland Affairs puts it:

“105.      Historically 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, their franchise will, by definition, be limited.”

76.  Moreover, given Hong Kong’s unique position as an international city with an open, free and outward-looking economy, many of these key stakeholders and players in functional constituencies are (and were at all times) companies owned or controlled by people with citizenships or rights of abode in foreign places.  Given the internal logic of the system of functional constituencies, that fact alone cannot be a good reason for excluding the company in question from having a right to vote, if other considerations indicate that it should be given such a right.  That, again, has been the case from the very beginning.

77.  On the other hand, the idea that only permanent residents may have the right to vote in elections was not an entirely new one in the late 1980s when the Basic Law was drafted, and certainly not in 1990 when it was promulgated.  As mentioned, the ICCPR, which had been applying to Hong Kong since 1976, gives the right to vote to “citizens”, and in the Hong Kong context, that means some form of residence or other connection requirement.  Prior to 1985, that right could only find expression in Urban Council elections and District Board elections.  For the Legislative Council, there were no elections; and there was no question of any type of residents or persons with a particular type of connection with Hong Kong having the right to vote in elections for the Legislative Council.  When the 1985 Legislative Council Election provided for, for the first time, elections to return members to the Council from functional constituencies, corporate voting was prescribed as an integral part of the electoral arrangement.  This continued to be the case in the 1988 Legislative Council Election.  Indeed that remained to be the case up to the time when the Basic Law was promulgated. 

78.  Viewed in that historical context, up to the time when the Basic Law was promulgated, Hong Kong had never had any elections for seats in the Legislative Council which only involved voting by permanent residents of Hong Kong (or by individuals who could satisfy a minimum residence or some other form of connection requirement).  Up to that point of time, corporate voting had always been an intrinsic part of Legislative Council elections.

4.6      Purpose and intent of art 68 and Annex II

79.  Article 68(2) of the Basic Law specifically provides that the method for forming the Legislative Council 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”.  It is a manifestation of the theme of continuity and enshrines the treasured principle of gradual and orderly progress.  In other words, one is to start off with what is in hand – “the actual situation” on the ground, and one may then make changes and progress in a gradual and orderly, cautious manner.  As the Explanations given by Mr Ji pointed out, the political structure designed under the Basic Law aimed to “maintain stability and prosperity in Hong Kong in line with its legal status and actual situation”.  “To this end”, the Explanations continued, “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”.  The Explanations went on to observe that: “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”.

80.  It is not difficult to see which part of the then political structure was regarded by the drafters of the Basic Law and the National People’s Congress as “proven to be effective”, and therefore should be maintained.  Plainly, elections for functional constituencies, in the form they took (which involved corporate voting), found favour with the drafters of the Basic Law and the National People’s Congress, as an effective system to cater for “the interests of the different sectors of society” and “to facilitate the development of the capitalist economy in the Region”.

81.  Annex II of the Basic Law, which specifically provides for the method for the formation of the Legislative Council and its voting procedures, makes express and specific reference to functional constituencies and their returning members to the Legislative Council at elections.  Putting the composition of the Legislative Council in the first term aside for the time being, Annex II specifically prescribes that for the second term and third term, members to be returned by the functional constituencies shall comprise 50% of the total membership, namely 30 seats.

82.  Para 2 in Part I of Annex II specifically leaves the “delimitation of functional sectors and corporate bodies（法定團體）, their seat allocation and election methods” to be specified by an electoral law introduced by the Government of the Hong Kong Special Administrative Region and passed by the Legislative Council.  However, it is quite obvious that the drafters of the Basic Law and the National People’s Congress have not found corporate voting, a pre-existing element in elections for functional constituencies practised at the time, to be fundamentally objectionable.  If it were otherwise, one would have expected para 2 in Part I of Annex II to make a specific mention of this when it authorised the Government and Legislative Council to deal with the question of delimitation of functional sectors and corporate bodies, their seat allocation and election methods for elections for functional constituencies by an electoral law. 

83.  Quite to the contrary, the specific reference to “corporate bodies” in para 2 is highly instructive.  According to the English version, the term clearly supports the contention that the Basic Law sanctions corporate voting.  Even if one were to focus exclusively on the Chinese term（法定團體）and read it restrictively to mean only statutory bodies, it would still provide significant support to the argument that article 26 of the Basic Law is never intended to apply to elections for functional constituencies.  The simple reason is that a statutory body is by definition not a natural person, and can never be a permanent resident.

4.7      Legislative intent behind the Decision

84.  But not only that.  The Decision, adopted by the National People’s Congress on the same day as the Basic Law, clearly set out in para 6 the prevailing hope and anticipation at the time, that there would be continuity in the method or system for forming the Legislative Council, and thus Council membership, in the transition from the last Legislative Council under British rule to the first Legislative Council of the Special Administrative Region.  The so-called “through train” concept. 

85.  Para 6 specifically provided that for the first Legislative Council, it 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.

86.  At the risk of repetition, it is pertinent to remind oneself here that back in 1990, the pre-existing system that the National People’s Congress was talking about in terms of the “through train” concept comprised elections for functional constituencies, and those elections provided for corporate voting.

87.  The subsequent history of the Patten reforms and their total rejection by the Mainland Government, which directly resulted in the formation of the Provisional Legislature by the Preparatory Committee and its adoption of the Measures (on the method for forming the first Legislative Council)[3], only served to reinforce the view that so far as the drafters of the Basic Law and the National People’s Congress were concerned, they were content with the pre-1995 system of elections for functional constituencies, which had as one of its important elements corporate voting.

88.  Given all this, one is driven to conclude, in interpreting article 26 of the Basic Law in its context, that it has never been intended to apply to elections for functional constituencies.

4.8      Some arguments by counsel

89.  Ms Li argues that article 26 does not draw a distinction between elections for geographical constituencies and that for functional constituencies.  That is very true.  However, as has been pointed out elsewhere, it must be remembered that the Basic Law uses ample and general language.  It states general principles and expresses purposes without condescending to particularity and definition of terms.  Gaps and ambiguities are bound to arise.  A purposive approach to interpretation must be adopted, and one must avoid a literal, technical, narrow or rigid approach.  I therefore do not regard the absence of any express or specific reference to the distinction between the two forms of election in article 26 a real objection to the interpretation that I prefer.

90.  Secondly, Ms Li argues that in terms of the importance and functions of the Council members returned under the two forms of election, there is simply no difference between them, save for the method of counting votes under certain circumstances, as prescribed in Part II of Annex II.

91.  Again, what leading counsel has said is true.  However, it does not follow from it that the Basic Law cannot intend that there be different ways for holding elections for geographical constituencies and for functional constituencies.  Nor does it mean that article 26 cannot simply have been intended to be applicable to only one form of election but not the other.

92.  Article 26 gives the right to vote “in accordance with law”.  “Law” in this context must include the Basic Law, and in particular Annex II.  Ms Li argues that the proper way to reconcile article 26 and para 2 in Part I in Annex II of the Basic Law is to interpret the provisions to mean that one may have “corporate bodies” (whether in its narrower or wider meaning) as constituents of a functional constituency, but when it comes to voting, only permanent residents from these corporate bodies may be allowed to vote.  Here, counsel is not referring to the requirement of voting by authorised representatives under the Ordinance.  She has in mind giving the vote associated with a corporate constituent to, for instance, the chairman or a board director, who is a permanent resident.  The individual so given the vote, is to exercise his own judgment in casting the relevant vote.  He is not to act as a proxy or mere representative of his company.  It is, in short, his personal vote.

93.  In view of the relevant history and context that I have spent some time on, I am not convinced that this represents the true intent of the Basic Law behind elections for functional constituencies when the same is mentioned in Annex II.  In any event, it goes against the very reason of giving corporations that are key players and stakeholders in a particular functional constituency a say in the representation in the Legislative Council.  It must be remembered that the companies are made constituents of a functional constituency because of their interests and contributions in the constituency.  The system of elections for functional constituencies seeks to give these companies a say in returning members to the Legislative Council.  The say is intended to be given to the companies.  Of course, companies are ultimately managed and controlled by individuals.  However, Ms Li’s suggestion breaks down immediately when one considers the position of a limited company with a board comprising mostly non-permanent residents.  According to Ms Li’s argument, the vote attributable to the company should be given to a director in the board who happens to be a permanent resident.  Yet such a person may or may not be the most senior person in the board or the one who actually controls or manages the company.  He could be a junior or a sleeping director.  In any event, since the vote to be given is meant to be a substantive rather than a nominal vote, giving the vote to a director or officer of the company, particular if he is not its controlling mind, would substantially defeat the original intent and purpose of making the company a constituent of the relevant functional constituency.

4.9      The Measures for forming the 1^st Legislative Council and counsel’s concession

94.  The Preparatory Committee decided in 1997 on the method for forming the first Legislative Council.  In the Measures, corporate voting was expressly provided for.  The work of the Preparatory Committee, including the Measures on the method for forming the first Legislative Council, was endorsed by the Standing Committee of the National People’s Congress in the same year. 

95.  Ms Li, for her client, is prepared to accept, therefore, that so far as the formation of the first Legislative Council is concerned, corporate voting was constitutional.  However, she emphasises the unique nature of the first term of the Legislative Council, in order to explain away the obvious anomaly created by her concession.

96.  On the other hand, Mr Pun, for his client, does not concede the constitutionality of corporate voting relating to the formation of the first Legislative Council.

97.  It is not difficult to understand why Mr Pun refuses to make a similar concession.  Once the concession is made, it is difficult to contain it to the first Legislative Council.  It is difficult to see how one can have an interpretation of article 26 and Annex II which would permit corporate voting for the first Legislative Council, and yet would outlaw the same in subsequent terms.  Such an interpretation would fly in the face of the known historical background of the Basic Law.  Indeed if it had been the intended position, one would have expected to find a clear indication to that effect in the Basic Law.  By way of contrast, the gradual phasing out of members returned by the Election Committee is unambiguously set out in Annex II. 

98.  On the other hand, it is difficult for Mr Pun not to make a similar concession.  It is true that generally speaking, nothing that happens after the enactment of the Basic Law can affect the actual legislative intent of the National People’s Congress at the time it was enacted.  However, as has been explained elsewhere, under the system of law practised on the Mainland, the National People’s Congress and the Standing Committee thereof have the power to interpret and clarify the meaning of the provisions in the Basic Law.

99.  Moreover, even under common law principles, where a later Act is in pari materia with an earlier Act, provisions of the later Act may be used to aid the construction of the earlier Act.  The underlying idea is that there is continuity of legislative approach in such Acts, and common terminology.  A later Act may thus throw light on some aspect of an earlier one.  Bennion on Statutory Interpretation (5^th ed) 708 et seq.  Of course, one is not interpreting an Act of Parliament or an Ordinance here.  However, the rule of statutory construction simply represents a rule of good common sense.

100.  In particular, given the relevant history that eventually led to the making by the Preparatory Committee of the Measures on the method for forming the first Legislative Council, it is simply impossible to ignore the unreserved endorsement by the Standing Committee of the National People’s Congress of the work of the Preparatory Committee (including the Measures), as a clear indication of the true intent of the National People’s Congress behind the Basic Law throughout.  Quite plainly, the legislative intent of the National People’s Congress throughout has never been to outlaw, constitutionally, corporate voting in elections for functional constituencies. 

4.10    Principle of gradual and orderly progress towards universal suffrage

101.  In my view, Ms Li’s concession has been rightly made.  As mentioned, counsel has tried hard to contain that concession to the first Legislative Council.  In the process, she makes a further submission, namely, that whilst corporate voting was constitutional for the elections of the first Legislative Council, because of the requirement of making “gradual and orderly progress” towards the aim of “universal suffrage” in article 68(2), corporate voting has by now (2009) become unconstitutional.

102.  This has never been an argument mentioned in the Form 86A and Form 86 in the two sets of proceedings respectively, and understandably there are no specific materials before the Court to deal with this point.  In any event, the true case of the applicants is unclear.  For instance, it is not known when corporate voting has become unconstitutional during the past 12 years.  Nor is it clear at what stage, and because of what actual situation in the Hong Kong Special Administrative Region or what gradual and orderly progress that has been made already, one has reached a stage where corporate voting is no longer constitutional in Hong Kong under the Basic Law.

103.  Certainly, in terms of constitutional development towards universal suffrage, despite the amount of discussion over the past few years on that and related topics, we are still, at this moment, living under the original framework laid down in Annex II of the Basic Law, with no amendment to its provisions whatsoever.

104.  As far as the actual situation in Hong Kong is concerned, referred to in article 68(2), which sets out the principle of gradual and orderly progress, certainly according to the evidence, the question of corporate voting has remained a controversial subject with no mainstream opinion.  (At least, the applicants have not provided any evidence of a mainstream opinion to the Court.)

105.  More fundamentally, counsel’s argument is premised on the principle of making gradual and orderly progress towards the ultimate goal of universal suffrage mentioned in article 68(2) of the Basic Law.  However, the application of this general principle must be read together with the provisions of Annex II, which provides for the “specific method for forming the Legislative Council” (article 68(3)).  Part I in Annex II sets out the key framework for forming the Legislative Council and leaves the details to be dealt with by an electoral law introduced by the Government and passed by the Legislative Council.  Part III expressly provides for the mechanism for amending the former “after 2007”, whereas any amendment to the details must be a matter of legislation for the Government and Legislative Council.

106.  If the true position is that corporate voting forms part of the key framework mandated or sanctioned by Part I of Annex II, it can only be abolished by following the amendment mechanism in Part III of Annex II.  Thus far, no such amendment has been made.  On the other hand, if corporate voting is merely one of the details, which Part I of Annex II leaves to the Government and Legislative Council to deal with by local legislation, its continued existence or abolition is simply a matter of legislation, rather than a matter of constitutional requirement.  Absent any such legislation to abolish corporate voting, it stays where it is. 

107.  Either way, the general principle of making gradual and orderly progress does not, by itself, get the applicants’ argument anywhere.

108.  That being the case, Ms Li’s argument based on making gradual and orderly progress must also be rejected.

4.11    Conclusion on art 26 of the Basic Law

109.  For all these reasons, I reject the applicants’ primary argument based on article 26 of the Basic Law.

4.12    Art 21(b) of the Bill of Rights (art 25(b) of the ICCPR)

110.  In my view, article 21(b) of the Hong Kong Bill of Rights which is based on article 25(b) of the ICCPR, does not take the applicants’ case any further.  I accept that article 25(b) of the ICCPR has an internationally recognised meaning.  However, so far as domestic law is concerned, article 25(b) assumes constitutional significance only by virtue of article 39 of the Basic Law.  Article 39(1) of the Basic Law provides that the provisions of the ICCPR “as applied to Hong Kong” shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

111.  As mentioned, although the Hong Kong Bill of Rights Ordinance was only enacted in 1991, the ICCPR had been extended to Hong Kong since 1976 (subject to the reservation mentioned above).  Thus the Basic Law, which was promulgated in 1990, one year before the enactment of the Hong Kong Bill of Rights Ordinance, provides in article 39(1) that the provisions of the ICCPR “as applied to Hong Kong” shall remain in force.

4.13    Position in 1990

112.  To what extent was the ICCPR applied in Hong Kong at the time when the Basic Law was promulgated?  In 1990, there had already been elections for functional constituencies in Hong Kong comprising, amongst other things, corporate voting.  Obviously, corporate voting was not regarded by the British Government or the then Hong Kong Government to be inconsistent with the provisions of the ICCPR as it then applied to Hong Kong.  Quite plainly, it was considered that the reservation of the British Government described above, relating to article 25(b), had the effect of permitting elections for functional constituencies in general and corporate voting in particular to be practised in Hong Kong.  All this constituted the historical background against which article 39 of the Basic Law was enacted, as well as the context in the light of which it must be interpreted.

113.  In other words, the legislative intent of the National People’s Congress, when enacting the Basic Law (including article 39), must have been to allow corporate voting to continue in elections for functional constituencies after the establishment of the Hong Kong Special Administrative Region, just as it had always been the case up to 1990.

4.14    Debates over true effect of the British reservation

114.  Thus analysed, it is quite futile to debate whether the perception at the time that the reservation made by the British Government had the effect of permitting corporate voting in elections for functional constituencies was no longer correct once members of the Legislative Council were allowed to be returned by elections.

115.  To this end, Ms Li has drawn the Court’s attention to the view expressed by Keith J (as he then was) in his first instance judgment in Lee Miu Ling v Attorney General (No 2) (1995) 5 HKPLR 181, 197C to 198B, to the effect that the reservation of the British Government (mirrored in section 13 of the Hong Kong Bill of Rights Ordinance) was, to the extent that it related to the Legislative Council, a dead letter, after the Letters Patent were amended to provide for a wholly elected Legislative Council in 1995.  Lee Miu Ling was a constitutional challenge against the legality of functional constituencies (under the Patten reforms) generally.  Keith J rejected the challenge on the basis of the amended Letters Patent.  On appeal, his decision based on the amended Letters Patent was affirmed by the Court of Appeal: (1995) 5 HKPLR 585.  The Court of Appeal did not express any opinion on Keith J’s view that the reservation was spent. 

116.  It is unnecessary to express any view on Keith J’s obiter dictum that the British Government’s reservation has become a dead letter in the circumstances described.  In my view, Keith’s J view does not assist Ms Li’s case at all.  Here again, timing is of crucial importance.  Keith J was addressing the position in Hong Kong in 1995, after the Letters Patent had been amended to provide for a “wholly elected” Legislative Council (p 197H).  That was after the promulgation of the Basic Law in 1990 and the enactment of the Hong Kong Bill of Rights Ordinance in 1991.  Since the amended Letters Patent stipulated for a wholly elected Legislative Council in 1995, the learned Judge therefore reasoned that the British reservation was rendered a dead letter as a result.  That view, however, does not affect the position back in 1990 when the Basic Law was promulgated.  At that time, the Letters Patent had not been amended and they did not stipulate for a wholly elected legislature.  Rather, only a minority of members of the Legislative Council were elected by functional constituencies.  There was therefore no question of the British reservation having become spent at that time even under Keith J’s reasoning.  As explained, article 39 provides for the continued application of the ICCPR to Hong Kong after 1997 as it applied to Hong Kong at the time the Basic Law was enacted.  For the reasons just given, at that time, the application of the ICCPR to Hong Kong was still very much subject to the British reservation, which was only to become a dead letter a few years later following the amendment of the Letters Patent (as per Keith J’s view). 

117.  In any event and more fundamentally, as I have said, what really matters is not the true legal position.  What is important is the general perception and understanding at the time when the Basic Law was promulgated as to the extent to which article 25(b) of the ICCPR was applicable to Hong Kong, which position article 39(1) of the Basic Law seeks to maintain after the establishment of the Hong Kong Special Administrative Region.

4.15    Reading art 39 together with the rest of the Basic Law

118.  Furthermore and in any event, article 39 is just one article in the Basic Law.  Like any other article in the Basic Law, it must be read together with the rest of the Basic Law, which must be read as a whole.  In particular, in the present context, article 39, to the extent that it renders article 25(b) of the ICCPR a constitutional guarantee in Hong Kong, must be read together with article 26, covering permanent residents’ rights to vote, and with article 68 and Annex II, dealing with the ultimate aim of universal suffrage and elections for functional constituencies.  Whilst the meaning of article 25(b) is generally fixed, it being a covenant in an international convention, its application in Hong Kong must be determined by reference to the Basic Law, read as a whole.  For the reasons given, in my view, it is quite plain that the National People’s Congress has never intended that article 26 of the Basic Law and article 25(b) of the ICCPR (as applied to Hong Kong) shall have the effect of prohibiting corporate voting in elections for functional constituencies.

4.16    Conclusion on the primary argument

119.  For all these reasons, I reject the primary argument of the applicants. 

5        Subsidiary argument – equality and discrimination

5.1      The argument

120.  Mr Pun runs a subsidiary argument on behalf of his client, which is adopted by Ms Li.  In a nutshell, this subsidiary argument is based on the right to equality and protection against discrimination under article 25 of the Basic Law and articles 1(1), 21(b) and 22 of the Hong Kong Bill of Rights.

121.  Mr Pun essentially complains that only allowing companies to vote discriminates against individuals.

122.  It is immediately obvious that this argument is limited to a functional constituency, like the transport functional constituency, which has no individuals as constituents.  It does not apply to a functional constituency such as the real estate and construction functional constituency, which is composed of both corporate and individual constituents.

123.  Mr Pun refers the Court generally to many features in the existing system which he says are discriminatory and unfair.  He submits that the applicants have been discriminated against because they do not have sufficient means to form a limited company.  This amounts to discrimination under article 1(1) of the Hong Kong Bill of Rights by reason of their “property”.  Counsel contends that there is simply no justification for the differential treatment.  In those circumstances, corporate voting constitutes unlawful discrimination.

5.2      Futility of the argument in terms of the relief sought

124.  It is quite unnecessary to go into detail of Mr Pun’s argument.  As Mr Michael Thomas SC (Mr Mike Lui with him) for the Secretary for Justice, has helpfully reminded the Court, the only substantive relief sought by the two applicants is a declaration that sections 25 and 26 of the Legislative Council Ordinance, to the extent that they provide for corporate voting, are unconstitutional and have no effect. 

125.  The applicants do not seek any relief to the effect that they be included as constituents in the transport and in the real estate and construction functional constituencies respectively.

126.  Indeed, the sole focus of the present constitutional challenge is on corporate voting.

127.  That being the case, it is difficult to see how the subsidiary argument based on equality or discrimination can lead to the applicants’ ultimate goal of striking down corporate voting.  Taken to the highest, the argument based on equality and discrimination 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 so registered alongside limited companies.  It could not lead to the desired result of outlawing corporate voting. 

128.  Despite Mr Thomas’ submission, there have not been any applications to amend the Form 86A and Form 86 in the two sets of proceedings respectively.  They must be dealt with as they now stand.

129.  For this reason alone, the subsidiary argument of Mr Pun must be rejected.

5.3      Argument lacks merit

130.  In any event, Mr Pun’s argument lacks merit. As described, counsel contends that the applicants have been discriminated against because they do not have sufficient means to form a limited company.  This amounts to discrimination under article 1(1) of the Hong Kong Bill of Rights by reason of their “property”.

131.  I do not accept this argument.  The applicant in HCAL 32/2009, a taxi driver, is not a constituent and cannot be registered as an elector in the transport constituency, not because he has no money to form a limited company.  Even if he had the means to form a limited company, he would not have become a constituent of the functional constituency.  His exclusion has nothing to do with his means or lack of means.  Rather, his exclusion is due to the criteria by which constituents in the functional constituency are identified by the legislature. 

132.  According to the evidence, election of members through functional constituencies is to enable important social, economic, occupational and other sectors in Hong Kong to be represented in the Legislative Council, and for their sectoral interests to be properly taken into account when bills or motions in the Legislative Council are debated.  Its purpose, according to the evidence, is to help to maintain stability and prosperity and facilitate the development of the capitalist economy in Hong Kong.  To serve this purpose, members in 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 or bodies in the sector.  Understandably, in some sectors, the key players and stakeholders often take the form of well-established corporations.  It is quite plain that the purpose of enabling the particular interests of these sectors to be represented will be defeated if all individuals who are in any way connected to these sectors are given a right to vote.

133.  The mere fact that an individual has the ability to form a company therefore does not automatically give that individual the right to vote in a functional constituency through that company.  In functional constituencies whose electorate consists of representative bodies, a body must assume certain degree of importance in the sector in order to qualify.  For functional constituencies whose electorate is defined by reference to umbrella organisations, there is no evidence that umbrella organisations would accept any company to be a member.

134.  It must be remembered that this constitutional challenge is not about the constitutionality of functional constituencies as such.  Nor is it about the criteria by which the constituents of a particular functional constituency are identified.  It is solely about corporate voting. 

135.  It should also be remembered that there is no constitutional requirement that specific functional constituencies must embrace any group of individuals.  The extent to which any groups should be included in the franchise of any functional constituency is a matter for political debate within the community, rather than a matter of constitutional requirement.

136.  That being the case, in my view, the taxi driver’s failure to become a constituent of the transport functional constituency has really nothing to do with his alleged lack of means to form a limited company. For the sake of completeness, I should add that in fact, the constituents of the transport functional constituency comprise, amongst others, some taxi associations.  There is no evidence placed before the Court by the applicant regarding whether he may, through one or some of these constituents, participate in the election process.  (For the reasons explained, this subsidiary argument does not even apply to the applicant in HCAL 55/2009 at all.)

5.4      Conclusion on subsidiary argument

137.  For all these reasons, the subsidiary argument run by Mr Pun, and adopted by Ms Li, must also be rejected.

6        Outcome

138.  During submission, many points have been made, which on proper analysis, are points directed against functional constituencies, a subject not under challenge in these applications for judicial review.  Even for those which are directed at corporate voting, many of them go to discrepancies and potential abuses that corporate voting may entail.  They are points going to whether the existing legislation relating to corporate voting is foolproof or requires fine-tuning.  They do not relate to the constitutionality of corporate voting.  For these reasons, this judgment has not dealt with any of them.

139.  Likewise, this judgment is solely concerned with the constitutionality of corporate voting.  It is not concerned with the political wisdom of corporate voting or functional constituencies.  Nor is it concerned with general political questions such as democracy and social justice.  All this must be ventilated elsewhere.

140.  The two applications for judicial review are dismissed.  I make a costs order nisi that there be no order as to costs in these two applications for judicial review, on account of the element of public interest involved.  I also bear in mind that the argument based on article 26 of the Basic Law is a respectable one.  I order legal aid taxation in respect of the applicants’ own costs.

141.  I thank counsel for their assistance.