Tutorial 5: The Government of the HKSAR and

the Constitutional Development of Hong Kong

1. Joshua Wong who is 19 years old applies for judicial review to challenge the following provision

of the Legislative Council Ordinance (Cap. 542): “Section 37(1) A person is eligible to be

nominated as a candidate at an election for a geographical constituency only if the person -

(a) has reached 21 years of age…”

Advise Joshua

Act of state: foreign affairs, whether we have jurisdiction

Fact of state: refers to the content of act of state – court will take whatever statement of

facts from the government

Will Hong Kong recognize certain entities as state? Does HK recognize US as state? facts of state

Does HK follows China in Congo – China will issue a certificate – Act of state (reference to NPCSC)

What counts a legitimate aim? Normally in the ordinance. But It is not necessary to be stated in the

law up to the govt’s lawyer to put forward. The wordings in the BL, limitation will be allowed to

protected public moral, public interest very board categories arguments by the govt will

potentially fall within the category – court to access whether it is legitimate

(1) What is the right concerned?

Right to stand for election

Right to participate in public life

o Fundamental right in political context (normally a high level of scrutiny):

what level of scrutiny do we apply? -> very vigorous

political context makes the level of scrutiny lower? (i.e. overrides the right?)

seemingly peculiar case

o Why should it be harder to restrict differential treatment

due age -> Signal of backseat of the government and

dilution of right protection

Justification: natural revolution of different level of scrutiny

(2) Prescribed by law

Specified in law

o Yes stated in basic law

Sufficiently precise

o Clearly guide conduct

Mwan: the central question is who gets to decide what age: less of a right issue, more of a

separation of power issue

very subjective judgment

Executive/judiciary/legislature?

o The court said: legislature;

o Why not court: Political decision which is not on the point of law

o The court should take a slightly more hands-off approach

Margin of appreciation: do it before the 3 stages test; the proportionality can be applied in a way

that entailed lower scrutiny

(3) Proportionality test (when lower scrutiny is applied, to which limb?)

Legitimate aim

Rational connection

No more than necessary?

o Political context;

Structure

(1) What kind of rights

right to vote and right to stand for election; fundamental rights -> scrutiny of courts will be

of higher degree

(2) Prescribed by law

(3) Proportionality test

Legitimate aim

o Aim: ensure people who are running are of sufficient mutuality for societal issue ->

likely legitimate

Rational connection

o Minimum age is to ensure sufficient mutuality

No more than necessary

o Why need to be 21 – how to determine the age?: may not withstand judicial scrutiny

Relevant case

Kwok Cheuk Kin

o Rights concerned

Right to vote stand for election are fundamental rights (para 73)

o Lower level of scrutiny

“a non-absolute fundamental rights”

since it arises in the context of politics, it involves exercising pre-

eminent political judgment, and does not adopt manifestly without

reasonable foundation – between the scrutiny of fundamental and

socio-economic rights

greater degree of deference as to the aim of limb 1 and limb 3

o Implication in light of Kwok’s case

the challenge may fall: it lowers the standard of review

distinguished from this case:

Kwok is about by-election vs this case minimum age for stand for

election – different fundamental rights

in this case, the court generalize and decide on the level of scrutiny -

the court is differential with the rights and context (the election

itself)

Not to use equality as argument – HRC on Art 25 of ICCPR – there are two

different stages of considerations (1) eligibility/is someone eligible – the age

question (2) once decide one is eligible – so if based on this eligibility –

whether there is discriminatory here we are still dealing with stage 1

argument on equality does not apply.

o ** Is there a dilution on scrutiny – even thought we have judicial independence in

Hong Kong, it doesn’t mean very much as the court adopts such a low level of

scrutiny as the level of scrutiny develops. **

o Kwok Cheuk Yin – the 5 electors still have the the right to stand for election, just

about their status on resignation – there is eligibility ~ discriminatory

But in court, it may pinpoint on the higher generalization – right to stand for

election / election scenario and what will be disruptive on the effective

functioning of the legislature. – depend on precedent cases

o The word “pre-eminently” – the extent

o The level of generality

UK – the age is reduced from 21-18 in January ~ but uncertain whether it can be used as

reference point

Right to vote (18) and right to stand for election (21) – law recognizes people at age 18 are

sensible enough for election.

2. Consider the following two proposals and discuss the questions on the proposals.

Proposal A: Semi-Presidentalism

(1) The Chief Executive (CE) will appoint a person who can get the majority support of the

Legislative Council (LegCo) to be the Chief Secretary (CS). (Usually, it will be the leader of the

majority party or a coalition in the LegCo but it is not required to be so.)

(2) CS will make recommendation to the CE on the nomination of principal officials to the Central

People’s Government (CPG).

(3) CS and the principal officials can be members of LegCo but it is not required to be so.

(4) CS and the principal officials will be directly responsible for the day-to-day operation of the

government (policy making, bill proposal, budget setting, and policy implementation).

(5) CE will chair the cabinet meeting.

(6) CE will continue to exercise the formal powers granted to him/her under the Basic Law on the

recommendations of the CS.

(7) CS and the cabinet are accountable to the LegCo. The LegCo can pass a vote of non-confidence

on the CS and the cabinet. If passed, the CS and the cabinet will have to resign. CE then will

have to appoint a new CS.

(8) CE can make a request to the CPG to dismiss CS.

(9) CE retains the actual power to refuse to sign a bill or a budget passed by the LegCo and to

dissolve the LegCo in accordance with the provisions of the Basic Law.

Questions:

(a) Does the Basic Law need to be amended to implement the proposal?

In terms of the power of CE/ Executive branch

o Art 48 – CE can exercise formal power

CE power is still protected in chairing the executive meeting -> no need

amendment

o Art 60 – CE should be the head of government

CS will be the one operating the government (policy-making, bill proposal) ->

uncertain whether its rights/role overlaps with the role of head of

government

In terms of interrelationships with LegCo

o Art 49, 50 – power to refuse to sign a bill & power to dissolve LegCo

Retain such powers -> no need amendment of BL

(b) Will the implementation of the proposal contravene the doctrine of executive-led form of

government?

Accountability and check and balance

The power to appoint members of Exco

o Art 55 – CE has the power to appoint local business or community leaders as his

advisor to the Exco under the semi-presidentialism CE only has indirect

power to elect principal officials/ cabinet/ executive council

o CE able to push forward policy more easily, why?

(c) Can this proposal improve the relationship between the LegCo and the Executive Authorities?

Aims:

o Check and balance

o Prevention of filibuster

o CE is more a background figure – less role to play – Given element of democracy and

broader representation ~ improving the relationship between LegCo and exco

(d) Will the implementation of the proposal allow the doctrine of executive-led form of

government to be actually carried out?

Doctrine of executive-led form of government by Zhang Xiaoming

o High degree of autonomy subject to the authority of the CPG

o CE of HKSAR holds the core position of the entire political system dual

accountability – Head of government and executive authorities

o If CS can push through the govt policy more efficiently – yes – not necessarily

entrenching the executive form of govt?

(e) What may be the obstacles to the implementation of the proposal?

BL seems to avoid party politics (?) CE should not have any political affiliation

If CS is from pro-establishment camp – LegCo and Exco deadlock still occur with the

presence of opposition party

(f) Do you have any suggestion to improve the proposal to enhance its chance of success?

Principal officers not appointed but elected by proportional representation – increase

representativeness

Proposal B: New Functional Constituencies

(1) All eligible voters can have two votes, one under the geographical constituencies and the other

under functional constituencies.

(2) On the basis of the existing functional constituencies and the different policy areas of existing

government policy bureaus, 20-30 “new functional constituencies” (NFC) will be established.

The establishment of a particular NFC will be based on the recommendation of an independent

electoral commission after a territory-wide consultation.

(3) Every voter can choose to be registered as the elector for any NFC of his/her won choice. A

voter can choose more than one NFC and can have 10 choices. Voters in the registration will

indicate the order of priority of his/her choices for the selected NFC (e.g. 1, 2, 3,4, ….10).

Voters’ choices of NFC and priorities for the election in the coming election of the Legislative

Council can be changed after the election and before the election of the next Legislative

Council. having order of priority ~ if the certain FC does not be enough base factor for

registered electors – can put into the second priority

(4) A base factor of registered electors will be set. Assuming that there are 3,000,000 electors and

there are 30 seats of the Legislative Council returned from functional constituencies, the base

factor will be 100,000 registered electors（3,000,000/30=100,000).

(5) If a particular NFC can have registered electors more than the base factor, a seat will be

allocated for that NFC. If the number of registered electors is two times of the base factor, two

seats will be allocated and so forth.

(6) If a NFC cannot have sufficient number of registered electors, no seat will be allocated.

(7) If the first choice of the NFC of a voter is allocated with one or more seats, he will vote in that

NFC in the coming election. If his/her first choice is not allocated with any seat, his/her second

choice will be considered. If the second choice has one or more seats allocated, he/she will

vote in that NFC in the coming election. A voter will be assigned to a NFC following his/her

order of priority until a NFC that he/she has registered is allocated with a seat.

(8) Any registered elector of a NFC can stand as a candidate in election of that NFC. Any registered

elector of a NFC can also nominate another registered elector of that NFC to be a candidate .

Any registered elector of a NFC must get the nomination from a specified number of registered

electors of the same NFC before he or she is entitled to be a candidate for that NFC.

Questions:

(a) Can the proposal satisfy the requirements of universal and equal suffrage?

Reservation of ICCPR Art 25(b) is no longer applicable

o S13 of BORO “ Art 21 does not require the establishment of an elected Executive or

Legislative Council in Hong Kong

o The section was established during the colonial period by the UK government

o HRC arguments – in relation to Britain’s report on behalf of pre-Handover Hong

Kong the treaty reservation only works in so far as Hong Kong did not have, and

was not have an elected legislature – but now, since HK has an elected legislature –

art 25 of the ICCPR applies and should be observed in its entirety.

Current problem of FC – vary in size. Create new FC that every voter can decide what FC can

be created use of the base factors

(b) What may be the rationale for reforming the existing functional constituencies to NFC?

Universal suffrage – one person one vote

(c) From the perspective of administrative arrangements, is the proposal workable?

(d) From the perspective of political legitimacy, is the proposal practicable?

(e) Do you have other suggestion to reform the functional constituencies to allow this form of

election be retained in 2020?

(f) Should the functional constituencies, reformed in whatever ways, be retained in 2020?

(g) If the functional constituencies were to be abolished, what is the chance of getting two-third of

the members of the LegCo to support the electoral reform package?

Idea in FC

- In the period of decolonization, in order to maintain the stability of decolonization – ensure

the most educated (most influential sectors) will have the say and see Hong Kong through

transitions

- The FC will either be broaden – more democratic or abolished

- But difficult to make FC fully representative ~ very complicated procedures

- Abolish how to draw up constituencies

The question of rights

- Structure

- What is the restriction? Is it proportional? (test)

- Where is rights of litigation going?

- Level of scrutiny?

- Common law way of thinking eg. In light of art 158 – common law method of interpretation

to cave out a sphere

- Question of purpose, how to distinguish certain facts, questions of generality