CHAN SHU YING v. THE CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

HCAL 151/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 151 OF 1999

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J U D G M E N T

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1. In January 2000, the Hong Kong Government assumed executive and administrative responsibility for various functions of a regional or local nature which I shall describe as municipal affairs. These functions were taken over from two municipal councils which were then abolished. At the time of the abolition, there were created a number of bodies called District Councils. These bodies, however, exercised no executive or administrative power; they were purely advisory. The Applicant has brought these judicial review proceedings to challenge the constitutionality of this 'new framework' for the conduct of municipal affairs in Hong Kong.

2. The challenge is founded on the assertion that the legislative steps taken to bring the new framework into being - more particularly, the provisions contained in the Provision of Municipal Services (Reorganization) Ordinance, Chapter 552, ('the Reorganization Ordinance') - are inconsistent with Article 25(a) of the International Covenant on Civil and Political Rights ('the ICCPR').

3. Article 25(a) of the ICCPR, which is enshrined in our law through Article 39 of the Basic Law, holds that every citizen shall have the right and opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives. It is said by the Applicant that in removing the old constitutional framework and replacing it with the new - at least in respect of executive power to control municipal affairs - the Reorganization Ordinance has indefinitely denied Hong Kong permanent residents the right to participate in public affairs at a regional or local level.

4. The essence of the Applicant's challenge, as I understand it, is that, while the new District Councils may give Hong Kong permanent residents the right, either directly or through freely chosen representatives, to advise Government on municipal affairs, this is not sufficient to meet the requirements of Article 25(a). Unless Hong Kong permanent residents are given the right to exercise executive and/or administrative power at a regional or local level there will be no compliance with Article 25(a) of the ICCPR.

Introduction

In 1995, the Applicant in this matter was elected to membership of a body called the Regional Council. At that time the Regional Council had responsibility for municipal affairs in the New Territories. Its sister body, the Urban Council, had responsibility for municipal affairs on Hong Kong Island and in Kowloon.

5. Under the umbrella of their empowering ordinances (the Regional Council Ordinance, Chapter 385, and the Urban Council Ordinance, Chapter 101), the councils managed a variety of municipal affairs. These included the management and maintenance of recreational facilities, the promotion of sporting and cultural events, environmental hygiene and the licensing of restaurants and bars. To enable them to discharge their responsibility, the councils exercised executive powers which included the power to collect revenue. Both were able to spend the money in their coffers as they wished so long as they did so within their statutory powers. Two departments of Government - the Urban and Regional Services Departments - acted as the executive arms of the councils. Although the personnel in these departments were Government servants, they were obliged by law to implement the policies of the Councils.

6. The two councils had a relatively long history, the Urban Council having been in existence before the Second World War, the Regional Council having been created in 1985. In that time their constitutions had evolved. The elections of 1995, which saw the Applicant become a member of the Regional Council, were the first in which, either directly or indirectly, all members of the two councils held office through election.

7. A year earlier, however, in anticipation of the People's Republic of China resuming sovereignty over Hong Kong, the Standing Committee of the National People's Congress ('the NPC') had determined that, immediately on resumption of sovereignty, the Legislative Council together with the Urban and Regional Councils would cease to exist. Their powers and responsibilities would be assumed by provisional bodies until it was determined by the laws of the new Special Administrative Region what would then come into existence.

8. As a result, on 1 July 1997, upon the change of sovereignty, both councils ceased to exist and were replaced by provisional councils. Each provisional council consisted of 50 members, all of those members being appointed by the Chief Executive. Among those appointed were all serving members of the now defunct Urban and Regional Councils. As a result, the Applicant became a member by appointment of the Provisional Regional Council.

9. At this juncture it should be said that early in 1997 the NPC had declared that the statutory provisions relating to the election of members to the Urban and Regional Councils were in contravention of the Basic Law and were not to be adopted as the law of Hong Kong after the resumption of sovereignty.

10. Although, in law, the provisional councils which came into being on 1 July 1997 were new organizations and not continuations of the old councils, they inherited the same powers and discharged the same functions as the old councils. However, as their names implied, they were not intended to be permanent institutions. This is illustrated by the fact that the terms of office of all the members were to expire by not later than 31 December 1999.

11. In October 1997, in a policy address, the Chief Executive announced that the Government would 'take a fresh look' at Hong Kong's municipal councils in order to decide what regional governmental structures would best ensure the 'efficient and responsive delivery of services to our evolving community'.

12. There followed a period of extensive public consultation, the submission of expert reports and the like, and by January 2000 the new framework was in place.

13. In broad terms, the Government assumed responsibility for the conduct of all municipal affairs. The legislation creating the provisional councils was repealed. In place of the provisional councils, 18 District Councils were created. The membership of these new councils was determined largely by election but the councils possessed no legislative, executive or administrative powers. They were constituted only as advisory bodies.

14. To give effect to these changes, two new ordinances were promulgated. Both took effect on 1 January 2000. The District Councils were created in terms of the District Councils Ordinance, Chapter 547, while the 'centralisation' of municipal affairs under the control of Government was made effective by the provisions of the statute which is challenged in these proceedings; namely, the Reorganization Ordinance. In particular, the Reorganization Ordinance not only repealed the laws which had brought the two provisional councils into being but also vested all the 'property, rights and liabilities' of the provisional councils in the Government.

The right to participate in regional or local affairs: a consideration of the legal framework

15. The Basic Law (which is Hong Kong's constitution) provides in Article 11 that no laws enacted by the Hong Kong legislative shall contravene the Basic Law. Mr Dykes, who appeared for the Applicant, contended that the Reorganization Ordinance, in failing to comply with Article 25(a) of the ICCPR, has done just that.

16. The Basic Law contemplates the existence of district organizations which will further the regional or local interests of Hong Kong people. In this regard, Articles 97 and 98 read:

"Article 97

District organizations which are not organs of political power may be established in the Hong Kong Special Administrative Region, to be consulted by the government of the Region on district administration and other affairs, or to be responsible for providing services in such fields as culture, recreation and environmental sanitation.

Article 98

The powers and functions of the district organizations and the method for their formation shall be prescribed by law."

As I read those Articles, they contain the following elements:

(i) That, if established, district organizations shall not be organs of political power.

(ii) That, if established, their powers and functions and how they come into being shall be set by law.

(iii) That they may be established as advisory bodies to consult with Government on what I have called municipal affairs but may also be established to provide services in such traditional municipal areas as culture, creation and environmental sanitation.

17. As to the right of Hong Kong permanent residents to participate in regional or local affairs, Article 39 of the Basic Law reads, in part, as follows:

"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 laws of the Hong Kong Special Administrative Region."

18. It is therefore through Article 39 of the Basic Law that Article 25 of the ICCPR has, since the return of sovereignty, been incorporated into Hong Kong law.

19. Article 25 was, at the date when sovereignty was returned, already incorporated into Hong Kong law through the Hong Kong Bill of Rights Ordinance, Chapter 383. In terms of that ordinance, Article 25 was reproduced as Article 21 of the Hong Kong Bill of Rights with the exception only that word 'citizen' in the Covenant article was replaced with 'permanent resident'. Article 21 therefore 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."

20. The distinctions mentioned in Article 1(1) refer to distinctions of race, colour, sex, language, religion, national or social origin and the like and have no relevance to the present matter.

21. When judicial review proceedings were first issued, the Reorganization Ordinance had not yet been promulgated. At that time, in addition to a declaratory order, the Applicant sought an order of prohibition restraining the Respondent; that is, the Chief Executive, from giving assent to the Bill or, if assent had already been given, an order of certiorari quashing that assent. However, in January of this year, accepting the realities; namely, that the Reorganization Ordinance had been fully implemented and that, in practical terms therefore there was no going back, the Applicant amended the application for review, seeking only a declaration. The required declaration was worded as follows:

"A Declaration that the Provision of the Municipal Services (Reorganization) Ordinance (Cap. 552) abolishing the Provisional Regional Council is inconsistent with Article 25 of the International Covenant on Civil and Political Rights, which is applied to the Hong Kong Special Administrative Region through Article 39 of the Basic Law, and/or Articles 97 and 98 of the Basic Law."

22. Mr Dykes, however, has further refined the declaration that is sought. This refinement moves away from the narrow assertion related to the abolition of the provisional councils to the far wider assertion that the Reorganization Ordinance fails to make provisions which allow Hong Kong permanent residents to participate in regional or local affairs. Mr Dykes has therefore proposed the following declaration:

"That the provisions of Part III of the Municipal Services (Re-organization) Ordinance, Cap. 552 and the Schedules thereto are inconsistent with the provisions of Article 25(a) of the International Covenant on Civil and Political Rights as applied to Hong Kong by Article 39 of the Basic Law, and are also inconsistent with Article 97 of the Basic Law."

23. In light of what is now sought, it is important, I believe, to understand what is not sought:

(i) The Applicant does not seek a restoration of the old Urban and Regional Councils. It is accepted that there may be many ways in which Hong Kong permanent residents may enjoy the right to participate in public affairs at a regional or local level and it is a matter for the Government working with the Legislative Council to establish such ways in accordance with the Basic Law.

(ii) The Applicant does not seek to contest the issue of whether the 'new framework' for the conduct of regional or local affairs is more efficient than the 'old framework' or whether the 'new framework' commands more popular support. These issues are not relevant to the issue of whether or not the 'new framework' is consistent with Article 25(a) of the ICCPR and/or Article 97 of the Basic Law.

(iii) The Applicant does not seek to contest the issue of whether the 'new framework' constitutes a 'retrograde step as regards the establishment of fully democratic institutions' in Hong Kong. That, of course, is a political question and not for this Court.

Interpreting Article 25(a): the method of approach

24. Mr Yue, who appeared for the Respondent, made it a central platform of his submissions that, as from 1 July 1997 when the People's Republic of China resumed the exercise of sovereignty over Hong Kong, a new constitutional order came into being.

25. The Hong Kong Special Administrative Region was created in accordance with Article 31 of the constitution of the People's Republic of China:

"The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People's Congress in the light of the specific conditions."

26. The Basic Law, said Mr Yue, was enacted by the NPC pursuant to Article 31 and became the constitution of the new special administrative region (see Ng Ka Ling and others v. director of Immigration (1899) 2 HKCFAR 4 at 13). Therefore, the matters in issue in these proceedings, he said, must be judged according to the new constitutional order dictated by the Basic Law. What came before that order is not of relevance.

27. In opposition to that, Mr Dykes submitted that the new constitutional order was always intended to ensure a 'continuum', this being illustrated by a large number of Articles including Articles 5, 8, 18, 19, 40, 65, 81, 86, 87, 91, 94, 144 and 145. As an example, Article 8 reads:

"The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region."

28. In the result, he said, the new framework, as I have called it, cannot be viewed in a vacuum and must be viewed in the context of Hong Kong's constitutional history. This did not have to involve the court in an exercise of making historical comparisons but what had been found sufficient in the past to meet the requirements of Article 25(a) of the ICCPR could not now be ignored.

29. I confess, however, to having difficulties with the approach urged upon me by Mr Dykes. I believe the correct approach may be stated quite simply: 'do the legislative arrangements now in place meet the requirements of Article 25(a)?'

30. Even the most rigid or traditional of societies are organic. By that I mean that they are constantly evolving. Governments change, laws and institutions change. The changes may be gradual or they may be sudden. They may even be revolutionary. This is clearly anticipated in the ICCPR. I say this because, in my view, what the Covenant seeks to express are fundamental principles which will endure despite changes in government, laws or institutions. I believe I am supported in this view by the words of Henry Steiner, director of the Human Rights Programme at the Harvard Law School who, in an article entitled 'Political Participation as a Human Right' (1988) 1 Harv HRY 77, said in respect of the right to participate in the public affairs (at page 132):

"As societies change - through industralization or urbanization, evolving relations between public and private sectors, reorganization of political and economic life, ideological shifts - the content of the right must be open to experimental reformulation. The notion of what it requires of governments will change significantly with ongoing national experiences. New needs and possibilities will emerge."

31. This, I believe, is one of the reasons why Article 25(a) does not attempt to direct at what level there should be compliance or the modalities that must be put into place to ensure compliance. As societies evolve so the manner in which they week to comply with the requirements of Article 25(a), indeed with the requirements of the Covenant as a whole, will change.

32. In summary, in my view, this Court is not concerned with how other jurisdictions have chosen (or today chose) to comply with Article 25(a) and comparing those modalities with our own legislative arrangements. Nor, on an internal basis only, do I believe this Court should concern itself with a comparative analysis, even of the most oblique kind, between, for example, the workings of the old Urban and Regional Councils and what is in place today. In my judgment, Mr Yue is correct when he says that a new constitutional order is now in place and the matters in issue in this case must be judged only in the context of that new order. My view in this regard is supported by the observations of Godfrey VP made when this present matter came before the Court of Appeal (the Applicant then seeking leave to apply for judicial review). In the course of his decision, Godfrey VP said (at page 14):

"As I view the matter, the constitutional arrangements in force in Hong Kong before 1 July 1997 have nothing to do with the substance of the present application, which relates to the arrangements in relation to local government since put in place, after the resumption of the exercise of sovereignty over Hong Kong by the People's Republic of China, ..."

An interprepation of Article 25(a)

33. Article 25(a) provides that citizens (that is, Hong Kong permanent residents) shall have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives. What essentially has been at issue in these proceedings is the true meaning of the phrase 'to take part in'.

34. The Applicant contends that there is no compliance with Article 25(a) if all that is provided is a means for the 'public monitoring' of the conduct of public affairs at a municipal level. Participation implies more than a mere advisory role. The phrase 'to take part in' the conduct of public affairs plainly implies the right to some exercise of governmental power of an executive or administrative nature. The Respondent however contends that no such implication can be drawn from the very broad and 'porous' wording of the Article; that the right to participate in the conduct of public affairs at municipal level can take many different forms. It is the Respondent's case that participation in the conduct of public affairs includes participation in institutions which, through public debate, open criticism, encouragement and advice, exert influence over law-making and executive bodies.

35. It is accepted that a broad concept is embodied in the words: 'to take part in the conduct of public affairs'. In his article 'Political Participation as a Human Right' (supra) (at page 128) Steiner contrasts the 'relatively vague and abstract' right to take part in the conduct of public affairs with the 'relatively specific right' to vote in elections, that right being guaranteed by Article 25(b). In considering the origins of this contrast, Steiner looks to the debates concerning the drafting of Article 25 and comments:

"What emerged from the periods of drafting and debates were norms that expressed an important ideal of political participation. But they gave little indication of the different ways of institutionalizing that ideal. It cannot have been by chance that their language was sufficiently confined - with respect to the "elections" clause - and sufficiently abstract and porous -with respect to the "take part" clause - to permit democratic and nondemocratic states to assert that they satisfied the norms' demands. More specific norms would have put at risk the goal of achieving broad support for the human rights instruments as a whole."

36. The description of the wording as being 'porous' I take to mean as being capable of holding a broad variety of ideas related to specific implementation of Article 25(a). The question to be asked, of course, is whether the broad concept of 'participation' in the conduct of public affairs is broad enough to encompass participation in institutions which have no legislative or executive powers but exert influence by means of open debate and liaison with legislative, executive and administrative bodies.

37. Certainly, Chan CJHC (as he then was) considered that the concept was broad enough to cover participation in both 'organs of power' and 'consultative and advisory bodies'. In this regard, I refer to the decision of the Court of Appeal in Chan Wah and Another v. Hang Hau Rural Committee and others [2000] 1 HKLRD 411 and to his judgment at page 433:

"Article 21(a) confers upon a permanent resident a general right to participate in public affairs. It also provides that he be given the opportunity to do so. Although it does not specify the means of participation, it clearly covers direct participation by actually taking part and indirect participation through elected representatives who take part in public affairs. It does not specify the level of participation. But since the Bill of Rights is to be given a purposive and generous construction (see R v Sin Yau Ming [1992] 1 HKCLR 127, (1991) 1 HKPLR 88) and A-G v Lee Kwong Kut [1993] 2 HKCLR 186, (1993) 3 HKPLR 72), I should think that it covers both "organs of power" as well as "consultative and advisory bodies". I am supported in this view by the comments of the Human Rights Committee on art. 25 of the ICCPR, (the same as art. 21), which says in para. 5: "It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels."

38. In the same judgment, Chan CJHC cited as persuasive authority a decision of the Human Rights Committee of the United Nations. The decision, given in July 1990, bears the citation Marshall v. Canada (No. 205/1986) and, in my view, is of direct relevance to the issue of whether participation in consultative or advisory bodies may meet with the requirements of Article 25(a). At issue in Marshall v Canada was whether a constitutional conference called by the Government of Canada to 'identify and clarify' the constitutional rights of Canadian aboriginal peoples constituted 'the conduct of public affairs' and whether a particular aboriginal group, the Mikmaq people, had the right, by virtue of Article 25(a), to attend that conference. It is to be emphasised that the constitutional conference had no executive or administrative powers; it was a consultative and advisory body only. Notwithstanding this, the Committee held that:

"In the light of the composition, nature and scope of activities of constitutional conferences in Canada as explained by the State party, the Committee cannot but conclude that they do indeed constitute a conduct of public affairs."

39. The Committee continued by saying:

"Although prior consultations, such as public hearings or consultations with the most interested groups may often be envisaged by law or have evolved as public policy in the conduct of public affairs, article 25(a) or the Covenant cannot be understood as meaning that any directly affected group, large or small, has the unconditional right to choose the modalities of participation in the conduct of public affairs. That, in fact, would be an extrapolation of the right to direct participation by the citizens, far beyond the scope of article 25(a)." [My emphasis]

40. Marshall v. Canada (commonly called the Mikmaq case) is referred to in an academic work, 'The International Covenant on Civil and Political Rights and United Kingdom Law', edited by Harris and Joseph (Clarendon Press, 1995) where (at page 538) the editors say:

"Article 25(a) contemplates means of influencing public policy beyond participation in elections, which is separately guaranteed in paragraph (b). These additional means could include participation in local-government bodies, like local education authorities, and town planning committees, or, as in the Mikmaq case, constitutional conferences. Indeed, decentralization of 'the conduct of public affairs' offers greater opportunity for citizens to 'take part' by attempting to influence more accessible public bodies, which are charged with managing affairs of more immediate relevance to them."

41. The editors continue by saying that Article 25(a) -

"... does not seem to guarantee an autonomous minimum level of political participation beyond the guarantees in paragraphs (b) and (c)."

42. In the course of his submissions, Mr Dykes, for the Applicant, referred to a commentary of the same Human Rights Committee concerning Article 25 of the ICCPR, this being 'General Comment Number 25' adopted by the Committee at its 57th session on 12 July 1996. Paragraphs 5, 6, 7 and 8 of the Commentary read:

"5. The conduct of public affairs, referred to in paragraph (a), is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers. It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels. The allocation of powers and the means by which individual citizens exercise the right to participate in the conduct of public affairs protected by article 25 should be established by the constitution and other laws.

6. Citizens participate directly in the conduct of public affairs when they exercise power as members of legislative bodies or by holding executive office. This right of direct participation is supported by paragraph (b). Citizens also participate directly in the conduct of public affairs when they choose or change their constitution or decide public issues through a referendum or other electoral process conducted in accordance with paragraph (b). Citizens may participate directly by taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government. Where a mode of direct participation by citizens is established, no distinction should be made between citizens as regards their participation on the grounds mentioned in article 25 and no unreasonable restrictions should be imposed.

7. Where citizens participate in the conduct of public affairs through freely chosen representatives, it is implicit in article 25 that those representatives do in fact exercise governmental power and that they are accountable through the electoral process for their exercise of that power. It s also implicit that the representatives exercise only those powers which are allocated to them in accordance with constitutional provisions. Participation through freely chosen representatives is exercised through voting processes which must be established by laws which are in accordance with paragraph (b).

8. Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association."

43. In my judgment, however, despite the persuasive arguments of Mr Dykes, these paragraphs when read as a whole, provide greater support for Mr Yue's contention that participation in the conduct of public affairs includes participation in consultative bodies. In this regard, I go direct to paragraph 6 in which the following is said:

"Citizens may participate directly by taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government." [My emphasis]

44. This commentary is to be read in light of the Committee's decision in Marshall v. Canada given several years earlier.

45. Paragraph 5, in acknowledging that the conduct of public affairs is a broad concept, states that it covers

"all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels."

If paragraphs 5 and 6 are to be read as being complementary to each other, it can only mean that advisory bodies which exert influence on the 'formulation and implementation of policy' do participate in the conduct of public affairs.

46. I also believe it is germane to note that in paragraph 5 it is said that:

"The conduct of public affairs, ... is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers."

The critical word here in my view, is 'relates'. That word means no more than 'has a relationship to'. If the interpretation Mr Dykes has urged upon me is correct, it would have been open to the Committee to use the phrase 'constituted by' so that the sentence would read: "The conduct of public affairs ... is a broad concept which is constituted by the exercise of political power, in particular the exercise of legislative, executive and administrative powers". But no words of such kind were employed.

47. Mr Dykes, of course, placed considerable reliance on paragraph 7; particularly on the first sentence which reads:

"Where citizens participate in the conduct of public affairs through freely chosen representatives, it is implicit in article 26 that those representatives do in fact exercise governmental power and that they are accountable through the electoral process for their exercise of that power."

But that begs the questions, what, in the context of the broad meaning of Article 25(a), is meant by the exercise of governmental power?

48. Mr Dykes referred to a commentary on the ICCPR by Joseph, Schultz and Castan (Oxford University Press) which, in respect of paragraph 7, says the following:

"The body or bodies elected by the people must 'in fact exercise governmental power'; the elected body cannot be a mere advisory body with no legally enforceable powers. The popularly elected body must either itself play a vital role in governing the State, or be in control of that body."

49. That comment, however, to a material degree, seeks to found its authority on an extract from another academic work; namely the work edited by Harris and Joseph (supra)，at page 543, where the following is said:

"The right to vote seems meaningful only if complemented by a right to elect the arm of the government which exercises legal and de facto power. Generally, organs which play a vital role in governing the state should be elected by the people, or be controlled by a body elected by the people."

50. This comment appears essentially to be related to Article 25(b) and, in my view, is no more than a comment, an aspirational one too.

51. In my judgment, if paragraph 7 is to be read not as in conflict with the other paragraphs but as complementary to them, the commentary must define 'governmental power' within the broad ambit of institutions which are able to influence legislative, executive or administrative functions although not themselves possessed of such powers. What, I believe, is stated in paragraph 7 includes the statement that individual states must ensure that institutions set up to influence the conduct of public affairs do, in fact, possess that power and are not created for what I may call (in blunt terms) 'political window dressing'.

52. What then of the District Councils; what power, if any, do they possess to influence the conduct of public affairs at a municipal level? Section 61 of the District Councils Ordinance defines their functions in the following terms:

The functions of a District Council are -

(a) to advise the Government -

(i) on matters affecting the well-being of the people in the District; and

(ii) on the provision and use of public facilities and services within the District; and

(iii) on the adequacy and priorities of Government programmes for the District; and

(iv) on the use of public funds allocated to the District for local public works and community activities; and

(b) Where funds are made available for the purpose, to undertake -

(i) environmental improvements within the District:

(ii) the promotion of recreational and cultural activities within the District; and

(iii) community activities within the District.

53. It will be seen from subsection (b) that the councils do possess limited administrative powers albeit only with funds obtained from Government.

54. The Secretary for Constitutional Affairs, Mr Suen Ming Yeung, in an affidavit sworn in support of the Respondent, says the following concerning the role of these councils:

"District Councils play an essential advisory role on district matters and issues affecting the whole of the HKSAR. In particular, they advise the Government on matters affecting the well-being of the people, the provision and use of public facilities and services, on the adequacy and priorities of Government programmes, and on the use of public funds in their respective districts. They also reflect local views to the relevant Government bureaux and departments.

It is the Administration's practice to consult the District Council of a district on matters which are likely to affect the livelihood, living environment or well-being of residents within the district. The Government has regularly and frequently consulted the District Councils on both district issues (such as the impact of the Government's 1998 squatters policy, allocation of secondary school places for primary 6 pupils, the noise problem of the Tsuen Wan MTR Depot) and territory-wide issues (such as the implementation of the Government's policy of having one social worker for each secondary school, tourism development, labour rights and protection).

The District Councils have established links to the community at the grassroots level and because of the relatively small population in each constituency, they are able to focus on the needs of the district."

55. I cite these passages not to illustrate how efficient or effective the councils may be; that is not the point. I cite them only to illustrate that today they appear to be considered (by Government at least) to be an integral part of the machinery of Hong Kong's regional and local governance.

Decisions of the Human Rights Committee are of persuasive value only.

56. While clearly I have accepted the decision of the Human Rights Committee in Marshall v. Canada as being of persuasive value and have similarly accepted the Committee's commentary on Article 25, I have at all times been guided by the dicta of Silke VP in R v. Sin Yau Ming (1991) 1 HKPLR 88 (at page 107) when he distinguished the decisions and comments of an international body, such as the Committee, from the decisions of a domestic court. In this regard Silke VP said the following:

"I would hold none of these to be binding upon us though in so far as they reflect the interpretation of articles in the Covenant, and are directly related to Hong Kong legislation, I would consider them as of the greatest assistance and give to them considerable weight."

57. He qualified this statement by saying:

"In seeking guidance from the decisions and comments of the [UNHRC] ... the Court should bear in mind that these are general comments and ... that the perspective adopted is to consider the international treaty obligations of States parties. Matters of principle are there stated in the widest and most general of terms so that all the individual States parties, and there is a multiplicity of them with differing legal traditions and social aspirations, may interpret them more meaningfully. Further, the Committee, under the Optional Protocol, is normally concerned with individual petitions from citizens of the States parties who are aggrieved by particular decisions of their domestic courts and who have exhausted all domestic judicial avenues of redress."

58. He then concluded:

"The approach of [the UNHRC] differs from that of a domestic court whose task is to determine the constitutionality or otherwise of domestic legislation measured, as is the case in Hong Kong, against an entrenched instrument."

My conclusion as to the meaning of Article 25(a)

59. In my judgment, as a domestic tribunal, I am satisfied that Article 25(a); that is, Article 21 of the Bill of Rights, when it states that Hong Kong permanent residents shall have the right and the opportunity to take part in the conduct of public affairs, includes in that right not only participation in institutions which have legislative, executive or administrative powers but participation also in institutions which, while not possessed of those powers, do have the power by way of open debate, consultation and advice to have a real influence on public affairs.

60. When I talk of 'public affairs' I intend it to be a broad concept covering all aspects of the formulation of public policies and their administration from the national to the regional to the local. As was said by Li CJ in Secretary for Justice and others v Chan Wah and others FACV Nos. 11 and 13 of 2000 (at page 21 of the transcript):

"Public affairs would cover all aspects of public administration including at the village level."

61. Patently, therefore, 'public affairs', as that term is understood in Article 25(a), includes what I have termed municipal affairs; namely the functions described earlier in this judgement as being discharged by the old Urban and Regional Councils.

The modalities through which there is participation in public affairs

62. In my view, however, the fact that 'public affairs' includes all levels of public administration does not imply that there must exist a body at all levels through which the conduct of such affairs will take place. It is for each jurisdiction, through its constitution and its laws, to decide the modalities best suited to meet the requirements of Article 25(a). To illustrate my meaning, a jurisdiction that is small in geographical dimensions and in population may decide that the most appropriate modality is one in which a single representative body deals with the conduct of public affairs at all levels.

63. I consider this distinction to be of some importance in the present case. I say this because it is apparent that, in bringing municipal affairs under its control, the Government has made its conduct of those affairs subject to the scrutiny of the Legislative Council. Article 64 of the Basic Law provides that the Hong Kong Government shall be accountable to the Legislative Council, shall implement laws passed by it and shall inter alia obtain approval from it for taxation and public expenditure. Article 68 provides that the Legislative Council shall be constituted by election. In short, the Legislative Council is a representative body which actively participates in the conduct of public affairs.

64. In his affidavit, the Secretary for Constitutional Affairs explained in some detail the manner and the degree to which the Legislative Council has today involved itself in the conduct of municipal affairs. To illustrate, the point, he has said:

"After the dissolution of the provisional municipal councils, LegCo has played an expanded and more important role in examining and monitoring Government policies, actions and expenditure relating to food safety, environment hygiene and leisure and cultural services. Government policies, actions and expenditure are subject to LegCo monitoring and evaluation at its Questions and Answers sessions, at LegCo Panel meetings, and through LegCo motion debates."

65. Later he has said:

"The establishment of the new framework substantially increased LegCo's role in approving and monitoring public expenditure in the provision of municipal services."

The Applicant's contentions under Articles 97 and 98 of the Basic Law

66. Mr Dykes has sought to support his principle argument that the new framework fails to meet the requirements of Article 25(a) with the contention that it also offends Articles 97 and 98 of the Basic Law.

67. Before moving to the complexities of that argument, and applying common law cannons of construction in order to ascertain the meaning and extent of the two Articles, I confess that have great difficulty in understanding how the constitutional position created by the Reorganization Ordinance and the District Councils Ordinance can offend those Articles.

68. Clearly, Article 97 is no more than an empowering provision. It is permissive in the sense that it permits the establishment of district organizations but does not create a constitutional obligation to establish them.

69. But the matter goes further. For, in my view, it is equally plain that if Government and the Legislature do decide to establish district organizations, they may do so either to act as consultative bodies on matters of district administration and related affairs or to be responsible for providing local services. No obligation exists therefore to create district organizations which possess executive or administrative powers. As it transpires, in terms of the District Councils Ordinance, district organizations have been established to fulfil the function anticipated by the first limb of Article 97; namely to act as consultative bodies on district affairs.

70. The first principle of construction in common law is that plain words must be given their plain meaning and I fail to see how any outside source can subvert the plain meaning of Articles 97 and 98 to which I have made reference.

71. Mr Dykes, however, submitted that a decision of the Preparatory Committee of the NPC, made on 1 February 1997, makes it clear that it was intended that, upon the resumption of sovereignty, organizations similar to the old municipal councils should be preserved. Mr Dykes accepted that this decision of the Preparatory Committee should not necessarily determine this Court's interpretation of Article 97 but he has referred to a statement by the NPC that advisory opinions of the Preparatory Committee may throw light on the intentions of the drafters of the Basic Law. In short, as I understood Mr Dykes, it was his contention that the decision of the Preparatory Committee should act as a persuasive guide to the true meaning and intent of Article 97. The decision in question appears in a document headed

"Decision of the Preparatory Committee for the Hong Kong Administrative Region of the National People's Congress on the Establishment of Provisional Municipal Organisations of the Hong Kong Special Administrative Region." [My emphasis]

The document contains a number of resolutions related to the setting up of the provisional municipal councils and in this regard states as follows:

"In view of the fact it is difficult to set up in time the first regional organizations of the Hong Kong Special Administrative Region on 1st July 1997, formation of provisional municipal organizations such as ... the Provisional Urban Council and Provisional Regional Council upon the establishment of the Hong Kong Special Administrative Region will be beneficial to a stable transition."

72. The document contains what appears to be an annexure dealing with the formation, powers and functions of these provisional municipal organizations and in paragraph 2, under the heading 'Terms of the Provisional Regional Organizations' the following is stated:

"The terms of the Provisional Municipal Organizations shall expire upon the formation of the first Municipal Organizations. The time of formation of the first Municipal Organizations shall be decided by Government of the Hong Kong Special Administrative Region." [My emphasis]

73. In that paragraph, said Mr Dykes, is contemplated (at the very least) the establishment of the first Regional and Urban Councils after the dissolution of the provisional bodies. It would then be for those Councils, through their elected membership, to decide the future of municipal government in Hong Kong in conjunction with Government and the Legislative Council. This, he said, would be consistent with the 'continuum principle' contained in the Basic Law, the leitmotif of continuity being found in those articles to which earlier reference has been made. It would also be consistent with a full and purposive construction of the Basic Law (which is to be construed as a whole), particularly compliance with Article 39 incorporating the ICCPR into our domestic law.

74. I trust I do no disservice to Mr Dykes in so summarising his submissions. However, with respect to him, I found them tenuous. The decision of the Preparatory Committee made on 1 February 1997 does not strike me in any way as attempting to be interpretive of Articles 97 and 98 of the Basic Law. The document does no more than make recommendations for the consideration of Hong Kong's first Chief Executive, assuming perhaps that similar councils will replace those existing before the resumption of sovereignty. It is in essence a document dealing with transitional arrangements and it would be wrong, in my belief, to read anything further into it. When application for leave in this matter was made at first instance, Stock J (as he then was) formed the same view of the Preparatory Committees' decision. In his extempore judgment he said the following:

"In my judgment, the Preparatory Committee was doing no more than making proposals to the Chief Executive on the establishment of these organisations and assumed, rather than required, that after the term of office of the Provisional Councils, they would be replaced by similar Councils. The Preparatory Committee was not, in my judgment, purporting to interpret either art.97 or art.98."

75. The plain and obvious meaning which I have attributed to the two Articles therefore stands and on that basis I am satisfied that neither the promulgation of the Reorganization Ordinance nor the District Councils Ordinance offends those Articles.

Does the new framework comply with Article 25(a)?

76. For the reasons given in the body of this judgment, I am satisfied that the constitutional arrangement put into place with the promulgation of the Reorganization Ordinance and the District Councils Ordinance does comply with Article 25(a). As I have said, it is for each jurisdiction, through its constitution and its laws, to decide the modalities best suited to meet the changing conditions of its own society which at the same time comply with Article 25(a).

77. In respect of municipal affairs, Hong Kong has chosen to place executive and administrative powers in the hands of the Government. However, legislative power remains with the Legislative Council which now has taken on additional powers to approve finance for municipal affairs and to scrutinise the workings of Government in respect of those affairs. In addition, Hong Kong has chosen to create a number of District Councils which are able to debate local needs and to influence Government in the formulation and implementation of policies to meet those needs. Though both sets of institutions - the Legislative Council and the District Councils - I am satisfied that, in law, the requirements of Article 25(a) have been met.

78. Accordingly, the application for judicial review must be dismissed. As for costs, there will be an order nisi for costs in favour of the Respondent, that order to be made final if neither party makes an application within 30 days of the date of the handing down of this judgment.