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CACV 57/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 57 OF 2014
(ON APPEAL FROM HCAL NO. 72 of 2012)
________________________
| BETWEEN |
| KWOK CHEUK KIN |
Applicant |
| and |
| SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS |
Respondent |
________________________
| Before: Hon Cheung CJHC, Lam VP and Poon JA in Court |
| Date of Hearing: 9 September 2015 |
| Date of Judgment: 22 October 2015 |
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JUDGMENT
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Hon Cheung CJHC:
1. I will presently ask Lam VP to give the judgment of the court. I would like to add a few words of my own by way of introduction.
2. This appeal raises, amongst other things, the question of how, where the constitutional right sought to be restricted is a fundamental right, the proportionality test should be applied, particularly in terms of the degree of the margin of appreciation that should be accorded, when at issue is essentially a political question.
3. As I understand him, Mr Pun SC (for the applicant)’s main contention on appeal is that there is no legitimate aim for the restriction imposed by section 39(2A) of the Legislative Council Ordinance (Cap 542) on a resigned legislator’s constitutional right to stand in the by-election which the resignation was designed to trigger. His arguments, putting it in my own way, essentially run along these lines:
(1) The right to stand in election is a non-absolute constitutional right.
(2) It may only be restricted, relevantly, if the restriction satisfies the proportionality test.
(3) While the proportionality test always contains the same three limbs: legitimate aim; rational connection and proportionate restriction, the intensity of scrutiny when applying the test differs depending on the nature of the right sought to be restricted.
(4) If the right is a fundamental right, the intensity of scrutiny is high. If the right is a socio-economic right, the intensity is lower.
(5) A high intensity scrutiny means the margin of appreciation to be accorded to the government/legislature’s judgment is narrow or even minimal, and the restriction must be stringently justified; and vice versa.
(6) This applies to the application of all three limbs of the proportionality test, including, relevantly for this case, the identification of a legitimate aim, if any.
(7) The right to stand in election is a fundamental right, as opposed to a mere socio-economic right. Therefore, it attracts a high intensity scrutiny when applying the proportionality test. The margin of appreciation to be accorded to the government/legislature’s judgment is narrow and small.
(8) In particular, a high intensity scrutiny should be employed in examining whether there is a legitimate aim for the restriction when dealing with the first limb. And the margin of appreciation to be accorded to the government/legislature’s judgment on legitimate aim is narrow and small.
(9) Resigning to trigger a by-election in order to renew/gain a mandate particularly on a controversial issue is a known and legitimate political manoeuvre in Western democracies. There are reasonably held political views for and against such a practice.
(10) It is for the government/legislature to prove the legitimate aim. To do so, they must establish that such a resignation practice amounts to an abuse of the resignation/by-election process which should be curbed.
(11) In this they must fail, given the divided views on such a practice. And the government/legislature’s judgment carries relatively little weight, as a fundamental right is involved and therefore a high intensity review is called for and the margin of appreciation is narrow and small.
(12) Accordingly, the government/legislature cannot satisfy the first limb of the proportionality test for want of a legitimate aim.
(13) The restriction therefore fails the proportionality test and is unconstitutional.
4. With respect, the main fallacy of Mr Pun’s arguments lies in his failure to differentiate the different limbs involved in the proportionality test and the different issues that may be encountered when applying the three limbs of the proportionality test. He simply uses the nature of the right involved as the only criterion to determine the intensity of scrutiny and the degree of the margin of appreciation to be accorded, and then apply them to determine all issues that are encountered when applying the proportionality test regardless of the nature of the issues involved.
5. It is true that generally speaking, the intensity of scrutiny varies with the nature of the right involved when applying the proportionality test. But this is not the only relevant consideration. The nature of each individual issue encountered on the facts of the case when applying the proportionality test is also highly relevant. And different limbs of the test may throw up different issues of different nature.
6. Generally speaking, the court is neither constitutionally positioned nor institutionally equipped to deal with a political issue, that is, an issue essentially involving political rather than legal judgment, or for that matter, a complicated polycentric socio-economic issue raising sensitive questions of resource allocation. This is so regardless of whether the right sought to be restricted is a fundamental right, and also whether the issue is encountered at the first limb or the third limb of the proportionality test. For good reasons, the court should, generally speaking, accord the government/legislature a broad margin of appreciation regarding their discretionary judgment on such an issue.
7. Whether resigning with the aim to triggering a by-election in circumstances like the present case amounts to an abuse of the resignation/by-election process (or as Lord Pannick QC prefers to put it, a mischief) that should be curbed or remedied, is essentially a political question for the politicians and political scientists, not a court of law. The court should accord a broad margin of appreciation to the conclusion that the government/legislature has reached on that question, and decide the first limb of whether there is a legitimate aim for the restriction accordingly. This is so even though the government/legislature has decided to achieve that legitimate aim by restricting a fundamental right (the right to stand in the by-election), as opposed to, say, a socio-economic right (for instance, depriving the resigned legislator his right to receive social welfare benefits for 6 months). For in either case, the political question remains a political one and its nature does not change; neither does the court’s inaptness to deal with it on its own without according a broad margin of appreciation to the government/legislature’s judgment.
8. In the nature of things, where (as here) the government/legislature has chosen to achieve the legitimate aim by restricting a fundamental right, that fact will likely feature prominently in the third limb of the proportionality test, that is, whether the restriction imposed is a proportionate measure in the sense that it is no more than is necessary. And the more fundamental the right interfered with, the more stringent will the court examine the government/legislature’s arguments that the restriction is proportionate and is no more than is necessary to achieve the legitimate aim. But even here, that is, when dealing with the third limb, issues essentially involving political or socio‑economic judgment may surface, and in relation to them, the same approach must be adopted even though the right involved is a fundamental right. A due margin of appreciation must be accorded to the government/legislature’s decision on those issues, when deciding whether the restriction is or is not “no more than is necessary”.
Hon Lam VP:
9. Section 39(2A) of the Legislative Council Ordinance [“the LCO”] provides as follows:
“ A person is also disqualified from being nominated as a candidate at a by-election if –
(a) within the 6 months ending on the date of the by-election ----
(i) the person’s resignation under section 14 as a Member took effect; or
(ii) the person was taken under section 13(3) to have resigned from office as a Member; and
(b) no general election was held after the relevant notice of resignation or notice of non-acceptance took effect.”
10. In these proceedings, the provision was challenged by the Applicant as being inconsistent with the right to stand for election under Article 26 of the Basic Law [“BL 26”] and Article 21 of the Hong Kong Bill of Rights [“BOR 21”]. His application for judicial review was dismissed by Au J on 5 March 2014. The learned judge [“the Judge”] held that the restriction in s39(2A) is a proportionate restriction on the constitutional rights the Applicant relied upon and it is compatible with them.
11. The Applicant appealed against that judgment. After hearing submissions from counsel on 9 September, we reserved our judgment.
12. We now give our judgment.
13. The background leading to the amendment of the LCO to add s39(2A) in 2012 was set out by the Judge in his judgment. It was the aftermath of the concerted action of five legislative councillors in January 2010 resigning from their offices to engineer by-elections in 5 different geographical constituencies (thus comprising the whole of Hong Kong). Their objective was to trigger what they described as a “de facto referendum” on a political issue which is not relevant for present purposes. The by-elections were held on 16 May 2010 and the other major parties did not field candidates to participate in them. All 5 resigned members were re-elected. The turnout rate for the...
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