Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs
Court of First Instance
Constitutional and Administrative Law List No 72 of 2012
Thomas Au J
Constitutional Law
5 March 2014

Constitutional law - Legislative Council - disqualification from standing for election - disqualification provisions under s. 39(2A) constitutional - Legislative Council Ordinance (Cap. 542) s. 39(2A) - Basic Law art.26 - Hong Kong Bill of Rights Ordinance (Cap. 383) s. 8 art. 21

In January 2010, five Legislative Council (“LegCo”) members (“Ls”) resigned, intending to stand in by-elections to trigger a “de facto” referendum on universal suffrage and the abolition of functional constituencies. Each of Ls was re-elected in the by-elections which cost approximately $126 million and saw one of the lowest voter turn-outs for LegCo elections. Following a public consultation and subsequent debate in LegCo, the Legislative Council Ordinance (Cap. 542) (“LCO”) was amended by introducing s. 39(2A) which disqualifies a LegCo member who resigned from office from being nominated and elected as a candidate at a by-election within six months of the resignation taking effect, unless an intervening general election was held. X applied for judicial review of s. 39(2A) as being inconsistent with art. 26 of the Basic Law which confers the right of Hong Kong permanent residents to stand for election “in accordance with law” and art. 21 of the Hong Kong Bill of Rights (the “HKBOR”) which confers that right “without reasonable restrictions”, arguing that the restriction under s. 39(2A) was unreasonable and disproportionate.

Held, dismissing the application, that:

• The right to stand for election under art. 26 of the Basic Law and art. 21 of the HKBOR was not absolute. Further, s. 39(2A) subjected that right to only a limited, not general, prohibition. The application of s.39(2A) was conditional on a LegCo Member choosing to resign. Thus, its impairment of “the essence and effectiveness” of the right was similar to other statutory restrictions on who was eligible to be nominated as a candidate, based on age, mental capacity, etc.

• In the context of the present case involving directly election law (and necessarily political and policy considerations) and also a right which was not an unlimited one, a due margin of appreciation should be accorded to the legislature and the executive in applying the proportionality test. The court should therefore only interfere if it found that, upon scrutiny, the restriction was manifestly without justifiable foundation.

• Applying the proportionality test, first, s. 39(2A) served a legitimate aim, namely to deter a LegCo Member from resigning voluntarily in order to trigger a by-election (in which he intended to stand for re-election) so as to improve the fair and effective working of the electoral system. It was within the spectrum of reasonableness that one might regard the conduct or act of a LegCo Member who resigned voluntarily in order to trigger a by-election as an abuse of and having a negative effect on the working of the electoral system, which would further lead to less respect and faith therein. Further, it did not restrict political opinion per se since it depended on the fact of resignation and not on the reasons behind it.

• Second, the restriction was rationally connected to the legitimate aim. The executive had properly identified the mischief it intended to address by the restriction. It was at least reasonable and logical to accept or believe (if it was not obvious) that the restriction would make it less likely for an incumbent LegCo Member to resign in order to trigger the by-election in which he could not run for election and another member of his party might be elected.

• Finally, the restriction in s. 39(2A) was the result of active and full debate in LegCo where competing interests were presented. The restriction was relatively limited in time and in scope and still gave the electorate the right to elect someone of their choice to fill the vacancy. Giving a due margin of appreciation to the legislature, s.39(2A) as a legislative response to Ls resigning to trigger a by-election in which they intended to stand, was not manifestly without reasonable foundation and it was a proportionate restriction to achieve the legitimate aim. Accordingly, s.39(2A) of the LCO was compatible with the right to stand for election guaranteed under art. 26 of the Basic Law and art. 21 of HKBOR.

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