|
HCAL 198/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 198 OF 2015
_______________
|
BETWEEN
|
| |
WONG CHI FUNG |
Applicant |
|
and
|
| |
SECRETARY FOR JUSTICE |
Putative Respondent |
| _______________ |
| Before: Hon Au J in Court |
| Dates of Hearing: 31 May 2016 |
| Date of Judgment: 22 June 2016 |
________________________
J U D G M E N T
________________________
A. INTRODUCTION
1. The applicant is now 19 years old. He says he wants to stand for the election as a member of the Legislative Council (“the LegCo”) for the geographical constituency. However, he is prevented from doing so since section 37(1)(a) of the Legislative Council Ordinance (Cap 542) (“LCO”) provides that a person may only stand as a candidate at an election for LegCo if he or she is at least 21 years old (“the minimum candidature age requirement”).
2. This is the applicant’s leave application to apply for judicial review, seeking to challenge the constitutionality of section 37(1)(a) of the LCO (the “Impugned Provision”) in imposing the minimum candidature age requirement.[1] He is represented by Mr Anson Wong SC leading Mr Wilson Leung.
3. The Secretary for Justice (“the Secretary”) as the putative respondent opposes the application and is represented by Mr Benjamin Yu SC leading Mr Mike Lui.
B. THIS LEAVE APPLICATION
B1. The applicant’s case
4. The court should only grant leave to apply for judicial review if the grounds of the intended judicial review are reasonably arguable with a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at paragraphs14 - 17, per Li CJ.
5. In this proposed judicial review, the applicant says the Impugned Provision is unconstitutional as the minimum candidature age requirement in setting the age at 21 years old amounts to an unjustified and disproportionate restriction of the right to stand for election.
6. The applicant seeks the relief of (a) a declaration that the Impugned Provision is unconstitutional; or (b) alternatively, a declaration that, on a remedial interpretation, the minimum candidature age of a candidate under the Impugned Provision should be the same as that of a person eligible to register as an elector under section 29 of the LCO (which is 18 years old) (“the Age Declaration”).
7. The applicant’s arguments as advanced by Mr Wong in support of this leave application run in summary as follows.
8. Article 26 of the Basic Law (“BL”) provides that permanent residents of Hong Kong “shall have the right to vote and the right to stand for election in accordance with the law” (emphasis added).
9. Similarly, Article 21(b) of the Bill of Rights (“BOR”) relevantly provides that “Every permanent resident shall have the right and opportunity… and without unreasonable restrictions (a)… (b) to vote and be elected at genuine periodic elections… (c)…” (emphasis added).
10. Thus, the rights of the permanent residents of Hong Kong to vote and to stand for election are enshrined in and protected by BL26 and BOR21.
11. In relation to the right to vote, section 29(a) of the LCO[2] provides that a person is not eligible to be registered as an elector unless he has reached 18 years of age (“the minimum voting age requirement”).
12. In relation to the right to stand for election, as mentioned above, the Impugned Provision provides for the minimum candidature age to be at 21 years old.[3]
13. It is common ground (as it is well established) that these rights are not absolute and can be subject to restrictions permissible under the laws. However, a restriction would only be regarded as permissible by the law if it satisfies the proportionality test, in that:
(1) the restriction is imposed to achieve a legitimate aim;
(2) the restriction is rationally connected to that legitimate aim; and
(3) the restriction as a measure is no more than necessary to accomplish that aim.
See: Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs [2015] 5 HKLRD 881 (CA) at paragraphs 19 - 20, per Lam VP (and the authorities cited therein).
14. As the minimum candidature age requirement constitutes a restriction on the exercise of the right to stand for election, the burden is thus on the Government to demonstrate why such restrictions can meet the proportionality test.[4] If the restriction cannot be shown by the Government to meet the proportionality test, it is unconstitutional.
15. In other words, in the present challenge, it is for the Government to demonstrate that the setting of the minimum candidature age requirement at 21 years old (a) is to achieve a legitimate aim; (b) is rationally connected to that legitimate aim; and (c) is no more than necessary to achieve that aim.
16. Moreover, while section 29 of the LCO imposes the minimum voting age requirement at 18 years old, the Impugned Provision imposes a higher age of 21 for the minimum candidature age requirement. The minimum candidature age requirement therefore represents a greater restriction of the right to stand for election.
17. Mr Wong contends that there is no prima facie reasonable or objective justification to impose the higher age requirement with respect to the right to stand for elections than that of the minimum voting age. Leading counsel in particular relies on the article of “Do Minimum Age Requirements Violate the Right to Stand for Election under the European Convention on Human Rights?”[5] byA Emilianides (“the Emilianides Article”) to support this proposition.
18. Mr Wong therefore submits that it is also necessary under the proportionality testfor the Government to provide sufficient evidence to show why it is proportionate to impose such a higher age restriction on the right to stand for election.
19. However, since the Government has not provided evidence at this stage to demonstrate and explain why the minimum candidature age requirement of 21 can satisfy the proportionality test, the Impugned Provision is (says Mr Wong) on the face of it unconstitutional, and the applicant’s judicial review must therefore be reasonably arguable.
B2. Court’s view
20. With respect to Mr Wong, I am unable to agree with him.
21. To consider the applicant’s arguments, it is important to begin by looking at some relevant propositions which are not disputed.
22. First, Mr Wong does not dispute that in principle there should be a minimum age restriction on the right to elect and the right to stand for election. This must be right as there is not even one example that has been cited before the court to show that there is a jurisdiction which imposes no minimum age restriction on these rights. In particular, it should be noted that the applicant does not challenge the constitutionality of the minimum voting age requirement.
23. Moreover, it is well accepted in the European jurisprudence that the imposition of a minimum age requirement for the exercise of the right to stand for election does pursue a legitimate aim to ensure the maturity of those participating in the electoral process.[6] As recognised in the Emilianides Article itself at page 675:
“The European Court of Human Rights has already noted that ‘the imposition of a minimum age may be envisaged with a view to ensuring the maturity of those participating in the electoral process’. Bearing in mind that the contracting states are not limited in specifying a legitimating aim, it should be accepted that imposing a minimum age requirement for the exercise of the right to stand for election pursues a legitimate aim and therefore does not in principle violate article 3 of Protocol No. 1.” (emphasis added)
24. Thus, it is clear that the imposition of a minimum age restriction in general serves the legitimate aim to ensure maturity of those participating in the electoral process.
25. Second, it is now also well established that when the court is dealing with a proportionality challenge relating to an issue which involves political or economic judgment, due margin of appreciation should be accorded to the relevant authority’s decision on that issue in deciding whether the restriction is no more than necessary.[7] In this respect, Cheung CJHC in Kwok Cheuk Kin, supra, has emphasized that the court in applying the proportionality test should give a broad margin of appreciation to the government or legislature regarding its discretionary judgment on issues relating to political judgment. The learned CJHC explained at paragraphs 5 - 6 as follows:
“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.” (emphasisadded)
26. The question concerning what age should be imposed under the minimum age requirement on the...
| 
