LEE MIU LING and Another v. THE ATTORNEY GENERAL

IN THE COURT OF APPEAL

1995, No. 145
(Civil)

- Headnote -

Constitutional law - Right of "equal suffrage" guaranteed by Article 21(b) of the Bill of Rights - whether functional constituencies established by Legislative Council (Electoral Provisions) Ordinance, schedule 2, unconstitutional having regard to Article VII(3) and (5) Letters Patent.

Observations on the form of the proceedings which were by originating summons and not by application for judicial review.

IN THE COURT OF APPEAL

1995, No. 145
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

INTRODUCTION

1. What the plaintiffs challenge are those provisions in the Legislative Council (Electoral Provisions) Ordinance, Cap. 381, which relate to functional constituencies. They commenced these proceedings to seek a declaration that those provisions have been repealed by article VII(5) of the Letters Patent and section 3(2) of the Hong Kong Bill of Rights Ordinance, Cap. 383. Having lost before Mr Justice Keith in the High Court, they now appeal to this Court.

Whether unconstitutional

2. In the court below, everyone including the judge took the question to be whether the provisions under challenge had been repealed. In truth however, since those provisions were enacted after the Bill of Rights had come into effect, the question raised by the challenge to them must be whether they are unconstitutional. As we said in The Queen v. Chan Chak-fan [1994] 2 HKCLR 17 at p. 23 lines 37 - 41:

" The Letters Patent entrench the Bill of Rights by prohibiting any legislative inroad into the International Covenant on Civil and Political Rights as applied to Hong Kong. The Bill is the embodiment of the Covenant as applied here. Any legislative inroad into the Bill is therefore unconstitutional, and will be struck down by the courts as the guardians of the constitution. And the test of constitutionality is the same as the test of Bill consistency."

Consequences of unconstitutionality

3. Mr Justice Keith said that the plaintiffs "only seek the elimination of those features of the functional constituencies which make them objectionable." That may be what the plaintiffs desire. But we cannot re-write the legislation under challenge. Our task is to decide whether such legislation is constitutional or unconstitutional. If we decide that it is constitutional, we uphold it. But if we decide that it is unconstitutional, then, simply by saying so, we strike it down.

4. Since we cannot re-write the legislation which the plaintiffs challenge, their challenge is necessarily to the whole of the legislation relating to functional constituencies. No half-way course is open. So, if the plaintiffs' challenge is correct in law, then (whether or not they desire or even realize it) the legal consequences would be these.

5. First, the 30 persons returned to the Legislative Council in respect of functional constituencies would not be Legislative Councillors after all.

6. Next, there would be no Legislative Council at all.

7. The first of those two consequences would flow from the vaporization from the outset of the law creating Legislative Councillors returned in respect of functional constituencies. For the legislation under challenge is that law.

8. The second would flow from the first: for our constitution does not - and did not at the time of the last general elections - admit of a Legislative Council with only 30 members none of them from a functional constituency. The Legislative Council required by our constitution is the one specified by article VI (1) of the Letters Patent which provides that:

" There shall be a Legislative Council in and for the Colony, and the said Council shall consist of sixty Members, being persons who are qualified for election and elected in accordance with laws in that behalf in force in the Colony and of whom -

(a) twenty shall have been returned in respect of geographical constituencies;

(b) thirty shall have been returned in respect of functional constituencies; and

(c) ten shall have been returned by an election committee."

9. Flowing from the second consequence is the third and final one which is that there would be no Legislative Council to enact the laws necessary to form a Legislative Council as required by the constitution. That would have to be done by imperial legislation: so much for local democracy.

10. Those are the legal consequences which would ensue if the plaintiffs' challenge is correct in law. If it is, so be it. Our task is to decide, without fear or favour, whether the challenge is correct in law.

Equal suffrage

11. Every permanent resident of Hong Kong has the right to vote at genuine periodic elections. That right is free of distinction. It is free of unreasonable restriction. And such elections must be by universal and equal suffrage. All of that is expressly provided by article 21 of the Bill of Rights. That particular requirement of equality of suffrage is reinforced, if it needs reinforcement, by the general equal protection clause contained in article 22 of the Bill of Rights.

Two complaints

12. In this Court, the plaintiffs make two complaints against the provisions which they challenge.

Both complaints being of inequality of suffrage

13. Both complaints are ultimately of inequality of voting power, and therefore of suffrage, which the plaintiffs say has been brought about by the provisions which they challenge.

14. The specific basis of the first complaint is that some people can vote in a geographical constituency and also in a functional constituency at the same time, while other people can only vote in a geographical constituency.

15. And the specific basis of the second complaint is this. Although each functional constituency sends one member to the Legislative Council, the various functional constituencies vary greatly in size. So the vote of each voter in a functional constituency has in effect less weight than the vote of each member of every functional constituency with a smaller number of voters. And, at least in respect of one or more of the larger functional constituencies, such disparity is too great.

Dealt with in reverse order

16. I propose to deal with those two complaints in reverse order.

The "growing pains" argument

17. Before I deal with the two complaints separately, I will address an argument raised in purported partial answer to both.

18. It is a "growing pains" argument of sorts, and runs along the lines that Hong Kong's electoral system, being at an embryonic stage, has to be judged sympathetically and therefore less stringently for that reason.

19. The argument seems to have found a measure of favour with the judge below: the expression "embryonic stage" is one which I have taken from his judgment.

20. It may also be that the argument finds some support - I put it no higher than that - in Canadian decisions such as that of the Chief Justice of British Columbia sitting at first instance in Dixon v. British Columbia (Attorney General) (1986) 31 DLR (4th) 546 and that of the Supreme Court of Canada in Re Electoral Boundaries Commission Act (1991) 81 DLR (4th) 16. That may be so. And I naturally do not doubt for one moment the correctness of anything said by the Canadian courts in the Canadian context in which they said it.

21. At the same time I find myself of like mind as the United Nations Human Rights Committee in Communication No. 172/1984, S.W.M. Broeks v. The Netherlands (adopted on April 9, 1987, at the twenty-ninth session) when (in para. 12.5) the Committee focused on the issue for it as "not whether or not social security should be progressively established in the Netherlands but whether the legislation providing for social security violates the prohibition against discrimination contained in article 26 of the International Covenant on Civil and Political Rights."

22. By parity of focus, we are concerned in the present case with whether or not an unconstitutional inequality of suffrage has found its way into Hong Kong's present electoral system and not with how that system may evolve in future. I would dismiss the "growing pains" argument as a distraction from the real issue.

THE SECOND COMPLAINT

23. I now concentrate on the second complaint.

The facts and figures of the second complaint

24. The most powerful way in which to illustrate the specific basis of the second complaint is simply to point to these facts and figures which emerged in the court below. The Regional Council Functional Constituency consists of only 39 voters. And that number could drop to 36 if all three members of that functional constituency who are ex officio members of the Heung Yee Kuk chose to vote in the Rural Functional Constituency. Those numbers are to be contrasted with the fact that it was estimated that there were about 487,000 persons entitled to be registered as voters in the Community, Social and Personal Services Functional Constituency.

The test as to whether a departure from identical treatment is justified

25. As I see it, that is a departure from identical treatment. And, accordingly, I repeat here what I said on that score in The Queen v. Man Wai-keung (No. 2) [1992]2 HKCLR 207 at p. 217 lines 9 -16:

" Clearly, there is no requirement of literal equality in the sense of unrelentingly identical treatment always. For such rigidity would subvert rather than promote true even-handedness. So that, in certain circumstances, a departure from literal equality would be a legitimate course and, indeed, the only legitimate course. But the starting point is identical treatment. And any departure therefrom must be justified. To justify such a departure it must be shown: one, that sensible and fair-minded people would recognize a genuine need for some difference of treatment; two, that the difference embodied in the particular departure selected to meet that need is itself rational; and, three, that such departure is proportionate to such need."

26. If a departure from identical treatment is justified, the legislation embodying it will be given due effect. But if such a departure is not justified, the legislation embodying it will be declared Bill repealed if enacted pre-Bill or struck down as unconstitutional if enacted post-Bill.

Applying that test here

27. I now apply the relevant test to the departure here in question.

28. As to need, I have no hesitation in concluding that sensible and fair-minded people would recognize a genuine need for some difference of treatment here. For, rightly in my view, the plaintiffs do not go to the extreme of suggesting that functional constituencies are inherently unconstitutional. (They could hardly so suggest since, as we have seen earlier, the Letters Patent not only authorize but expressly require functional constituencies). And by their very nature, functional constituencies are bound to vary in size. They are bound to do so unless it were feasible to devise groups defined by function and then force an equal number of persons into each. Obviously, such an exercise would not be feasible.

29. Once some variation in size is seen to be necessary as being inevitable, the focus shifts to the degree of such variation.

30. The size of each functional constituency - and consequently the degree of the variation in size between them - flows automatically from the way in which they are drawn up.

31. Now, in respect of some things in this world, only one result would be sensible and fair: and all sensible and fair-minded people will inevitably arrive at the same result. But things are not always so clear-cut. Sometimes different people, all of them sensible and fair-minded, will come to different conclusions. Indeed, some diametrically opposite views are only to be expected. In such a situation, sensible and fair-minded people would be willing to recognize the rationality and sense of proportion of views opposed to their own. Such a willingness would be the hallmark of good sense and fair-mindedness.

32. So what sort of situation have we here? Nobody would suggest that if each and every sensible and fair-minded person in Hong Kong were to sit down and draw up the territory's functional constituencies on his or her own, all of them would come up with the same result. It is in the nature of things that the results would be highly diverse.

33. Accordingly, it is pointless to try to apply the relevant test by asking oneself whether sensible and fair-minded people in general would positively endorse the present functional constituency arrangement as being in conformity with the one which they would have brought about themselves if the task of drawing up the territory's functional constituencies had been theirs to perform. That would be trying to measure something by a non-existent yardstick.

34. So the question has to be along these lines. Would sensible and fair-minded people condemn that arrangement as irrational or disproportionate? The question does not fall to be answered by public opinion poll or by referendum. It falls to be answered by judicial decision. Giving the matter my best consideration, I answer the question in the negative: they would not so condemn it.

35. Accordingly, the second complaint fails on the merits.

Standing

36. I add "on the merits" because, in addition to answering the second complaint on the merits, the defendant takes a point on locus standi thereon. He contends that neither plaintiff has standing to advance the second complaint because neither of them are voters in any functional constituency, and only voters in one of the larger functional constituencies have such standing. Be that as it may, the merits of the complaint have been fully argued and a judicial decision thereon now is desirable.

THE FIRST COMPLAINT

37. Having disposed of the second complaint, which I dealt with out of turn, I revert to the first complaint in order to deal with it now.

The facts and figures of the first complaint

38. The factual background to the same may be outlined thus.

39. These facts and approximate figures (based on entitlement to be registered as a voter) emerged in the court below. Each member of Hong Kong's 3.9 million strong electorate has a vote in a geographical constituency. Of those 3.9 million persons, 2.9 million persons (being essentially employees, people in business and professionals) will also each have a vote in a functional constituency. But none of the remaining one million persons will have any vote in addition to the one which he or she has in a geographical constituency. Result: 2.9 million persons with two votes each and one million persons with one vote each.

Article VII (3) of the Letters Patent

40. Those facts and figures disclose a departure from identical treatment.

41. In this instance, however, the question whether or not the departure is justified in terms of the constitution is not to be answered by an application of the general test laid down in The Queen v. Man Wai-keung(No. 2) (supra). Here there is a particular provision which is relevant. And the question is to be answered by reference to that particular provision, namely article VII (3) of the Letters Patent.

42. If it passes by reference to that provision, the departure is justified. But were it to fail by reference to what is particular, then there would be no real scope for seeking to justify it by reference to anything general.

43. It is by paragraph (5) of article VII that Bill inconsistent post-Bill legislation is rendered unconstitutional. That paragraph is in general terms and provides that:

"The provisions of the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 16 December 1966, as applied to Hong Kong, shall be implemented through the laws of Hong Kong. No law of Hong Kong shall be made after the coming into operation of the Hong Kong Letters Patent 1991 (No. 2) that restricts the rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with that Covenant as applied to Hong Kong."

44. But paragraph (3) of the same article is in specific terms and provides that:

"Nothing in this Article shall be construed as precluding the making of laws which, as regards the election of the Members of the Legislative Council, confer on persons generally or persons of a particular description any entitlement to vote which is in addition to a vote in respect of a geographical constituency."

45. Article VII cannot be read as rendering unconstitutional something which goes no further than what it in terms permits. And, as we have just seen, one of the things which it in terms permits is conferring on persons of a particular description a voting entitlement additional to a geographical constituency vote.

46. Here the persons of a particular description are the voters in functional constituencies and the additional voting entitlement conferred upon each of them is a vote in his or her functional constituency. Is that unconstitutional? In my view, it is not unconstitutional. It comes squarely within paragraph (3) of article VII. And it does not involve any application of that paragraph which would in any way derogate from paragraph (1) of the same article, which paragraph defines the laws which the Legislature here may make as laws for the "peace, order, and good government" of Hong Kong.

47. Accordingly, the first complaint also fails.

RESULT

48. In the result, I would (with an expression of my thanks to counsel on both sides for their assistance) - dismiss this appeal.

Godfrey, J.A. :

49. Under Article VII(5) of the Hong Kong Letters Patent, no law may be made which restricts the rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with the International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations on 16 December 1966, which has been implemented in and applied to Hong Kong through the medium of the Bill of Rights Ordinance, Cap.383 ("the Ordinance"). These rights are to be enjoyed without distinction of status (such as answering to a particular description) : see Article 1(1) of the Bill of Rights set out in Part II of the Ordinance. And these rights include the right to vote at elections by universal and equal suffrage, a right not only to be enjoyed without any distinction based on status, but also a right to be enjoyed without unreasonable restriction : see Article 21 of the Bill of Rights.

50. However, Article VII(3) provides that nothing in Article VII shall be construed as precluding the making of a law which operates to confer, on persons of a particular description, an entitlement to vote in addition to a vote in respect of a geographical constituency. It follows from the fact that a law confers, on persons of a particular description, an entitlement to vote which is in addition to a vote in respect of a geographical constituency, that the law cannot be challenged on that ground alone. It does not follow that the law which confers, on persons of a particular description, an entitlement to vote which is in addition to a vote in respect of a geographical constituency, cannot be challenged on any other ground. If the law under consideration makes some distinction of status other than that of answering to a particular description, or imposes any unreasonable restriction on the right to vote, the law cannot stand with Article VII(5).

51. The law with which we are presently concerned is an electoral law recently enacted which provides for functional constituencies. This law does make distinctions as to status; distinctions between persons answering to different particular descriptions. But that is expressly permitted by Article VII(3). The new law makes no other distinction as to status, and therefore does not fall foul of Article 21 of the Bill of Rights on that ground. The new law imposes a restriction, too; for only those who do answer a particular description are entitled to a second vote and others are restricted to one vote only. But this is objectionable only if the restriction is unreasonable.

52. In my judgment, the restriction of the voting rights of those who do not answer a particular description to one vote only is a necessary concomitant of the exercise by the legislature of its right to make a law which confers, on persons of a particular description, an entitlement to vote which is in addition to a vote in a geographical constituency. That being so, it is quite impossible to hold the restriction to be an unreasonable restriction. As to the further point argued before us, that the legislature should have produced a scheme for functional constituencies better balanced than that which it did produce, that, as it seems to me, is a matter with which this court can have nothing to do; and, in any case, the comparative sizes of the different functional constituencies is entirely irrelevant to the appellants' grievance, which is that they have only one vote, whereas many other permanent residents of Hong Kong have two. But the source of that grievance, whether justified or not, is Article VII(3) of the Letters Patent; it is not some illegitimate infringement, on the part of the legislature, of the provisions of Articles 1 and 21 of the Bill of Rights.

53. For these reasons, I too would dismiss this appeal.

Litton V-P:

54. I agree that this appeal must be dismissed, for the reasons so admirably given by Bokhary JA.

Whether the plaintiffs had "sufficient interest"

55. As to whether the plaintiffs had standing to make the second complaint - the inequality of voting power in the various functional constituencies - the nature of their originating process must be borne in mind. They have, upon legal advice, chosen not to seek declaratory relief under Order 53 rule 1(2), thereby avoiding the regulatory regime governing applications for judicial review. The judge was troubled by this in the court below and invited submissions from the parties, considering (quite rightly) that any rights possessed by the plaintiffs were public law rights. Why should the plaintiffs not then be required to commence proceedings under Order 53 rule 1(2)? At a hearing convened for that purpose counsel (including Mr Geoffrey Ma QC counsel for the Attorney-General) persuaded him that because the challenge was not to "any decision of a public authority, or to a judgment or order made in quasi-judicial proceedings", but to the "legality of primary legislation", Order 53 was "not apt" to deal with such challenge. This, on the face of it, is a startling proposition, for if there ever was a matter in the public law domain, it would be a constitutional challenge of this kind.

56. Order 53 rule 3(2) requires the proceedings to be commenced in the statutory form - Form 86A - which refers to the "judgment, order, decision or other proceeding in respect of which relief is sought" (emphasis added). Without perhaps fully realizing it, the "proceeding" which the plaintiffs were in fact seeking to impeach was the Governor's act in assenting to the Legislative Council (Amendment) Ordinance 1994, on 7 July 1994, which contained schedule 2 with the 29 functional constituencies (including the 9 new ones). The plaintiffs' case, in essence, although it was never formulated as such, was that the Governor had acted unconstitutionally in making that law (with the advice and consent of the Legislative Council). I have no doubt that the only proper proceeding was by judicial review, as the judge himself was inclined to think, until he was persuaded otherwise.

57. If the plaintiffs had applied for judicial review their claim would have been examined by a High Court judge at the ex parte stage under Order 53 rule 3 and they would have had to show "sufficient interest in the matter to which the application related": see rule 3(7). These words have been construed liberally by the courts, but nevertheless there are limits. The plaintiffs were not members of a functional constituency and yet their complaint was that the voting power of some electors in those constituencies had been "diluted" by the scheme set out in schedule 2 to the Legislative Council (Electoral Provisions) Ordinance, Cap. 381. It is worth emphasising this: However the scheme might have been devised, and whether the functional constituencies be equal in size or not, the plaintiffs' primary complaint would have remained the same: that they had only one vote in the 1995 Elections, whereas other electors had two votes. Their rights as electors in the geographical constituencies were they say affected by the existence of functional constituencies in which others had a second vote: they were unaffected by the distribution of voting power in those functional constituencies in which they had no votes. It is difficult to see how they could have satisfied the requirement of Order 53 rule 3(7) with regard to the second complaint, had they launched proceedings for judicial review.

"Declarations of right"

58. But the matter does not end there. They commenced proceedings by an originating summons, seeking declaratory relief. The court's jurisdiction to give such relief is governed by Order 15 rule 16 which, in effect, limits the court's powers to making "binding declarations of right". Not being electors in any functional constituency - large or small - what rights of the plaintiffs have been violated by the inequality of voting power inherent in the scheme in schedule 2? I can see none. The judge (p13 of his judgment) doubted the plaintiff's standing to make the complaint. He was right to do so.

The relief claimed

59. As to the form of the relief asked for by the plaintiffs, the declaration in the amended originating summons sought to impeach the whole of the Legislative Council (Electoral Provisions) Ordinance. Acknowledging that this was far too wide, on any view, Miss Gladys Li QC said in the course of the hearing before us that if the judge had accepted her arguments in the court below, an "appropriately worded" declaration could have been formulated to give effect to his judgment. But this was to put the cart before the horse. Unless the judge had before him the precise form of relief to which the plaintiffs say they were entitled, there was no clear focus to the proceedings and the arguments of counsel would by their nature have been diffused. And so it has proved, judging by the "subsidiary complaints" dealt with on pp14 to 21 of the judgment which have been abandoned in this court.

60. The judge recorded Miss Li as saying that the plaintiffs accepted that functional constituencies could "live in harmony with the Bill of Rights" and they only sought "the elimination of those features of the functional constituencies which made them objectionable". And yet they did so by means of a declaration which impeached the whole of the Ordinance. As Bokhary JA has mentioned in his judgment, it is not the function of the court to re-write the legislation. It is difficult to see how "features" of the functional constituencies, said to have been objectionable by the plaintiffs, could have been "eliminated" otherwise than by the use of an editorial blue-pencil. Miss Li never suggested that the court had such editorial powers. The proceedings, as can be demonstrated, were ill-founded from the start.

61. This appeal is dismissed.