The Meaning of the Right to Vote in Hong Kong

The Meaning of the Right to Vote

in Hong Kong

Simon Young’

From 1982 to 1997, Hong Kong went from having no
form of elected government to having a fully elected Legis-
lative Council (though not entirely by geographical con-
stituencies). Under Chinese sovereignty after 1 July 1997,
Hong Kong has regressed to its pre-democracy days as a
result of the establishment of appointed provisional bodies
in place of the elected ones. Against this changing context
of the right to vote in Hong Kong, this article seeks to ex-
plicate fundamental principles and purposes which underlie
the meaning of that right.

After considering its constitutional and human-rights
status, the text of Hong Kong’s Bill of Rights, and the his-
torical, social and political context of Hong Kong, it is ar-
gued that the meaning of Hong Kong’s right to vote is in-
formed by two purposes: the protection of all other human
rights and the achievement of self-government. Applying
these principles, it is argued that the Hong Kong High
Court was correct to find that the ten-year residency re-
quirement for candidacy unreasonably infringed the right to
vote. However, in a subsequent case challenging the sys-
tem of functional constituencies, both the High Court and
Court of Appeal provided unsatisfactory decisions, which
are critically assessed in this article.

It is hoped that the principles of interpretation and
purposes of the right to vote outlined here will be adopted
in the new Hong Kong, where legal and political en-
croachments on the right to vote and other human rights
appear imminent.

Entre 1982 et 1997, Hong-Kong est passde d’un gou-
vemement non-6lu h un gouvemement entirement
lu
(bien que ces dlections n’aient pas dtd enti~rement basdes
sur des circonscriptions g6ographiques). Depuis le ljuillet
1997, Hong-Kong, desormais sous juridiction chinoise, est
revenue A son syst~me prd-d6mocratique, suite A la mise en
place d’un Conseil l6gislatif entirement nomnm6. Le pr6-
sent article vise b expliciter les principes de base et les buts
qui sous-tendent le droit de vote.

Apr6s avoir considdrd le statut du droit de vote dans
la contexte du droit constitutionnel et des droits de la per-
sonne, ainsi que le texte du Bill of Rights de Hong-Kong et
le contexte historique, social et politique de Hong-Kong,
I’auteur propose une analyse double du droit de vote.
D’une part, le droit de vote sert A assurer le respect des au-
tres droits fondamentaux ; d’autre part, il vise
garantir
l’autoddtermination interne. A la lumi~re de ces principes,
l’auteur conclut que la High Court de Hong-Kong a eu rai-
son de conclure que l’exclusion des candidats qui n’avaient
pas rdsid6 A Hong-Kong pendant au moins dix ans consti-
tuait une violation du droit de vote. Toutefois, dana une af-
faire subs&luente, qui attaquait la validit6 des circonscrip-
tions fonctionnelles, tant la High Court que la Court of Ap-
peal ont rendu un jugement inad~quat. Ces d6cisions sont
ici analys(es de mani~re critique.

I1 est A souhaiter que les principes d’interpr&tation du
droit de vote qui sont pr~sent s ici seront adopt~s A Hong-
Kong, oit de graves violations du droit de vote et d’autres
droits de la personne semblent imminents.

. B.A.Sc. (McMaster), LL.B. (Toronto). This article originates from a ten-week internship at the
University of Hong Kong and the offices of the Democratic Party (Hong Kong). The International
Human Rights Internship Programme, at the Faculty of Law, University of Toronto, under the direc-
tion of Professor Rebecca Cook, was responsible for making this experience possible. Accordingly, I
am indebted to these institutions/organizations, and especially to Professor Cook, for all her encour-
agement and support, Andrew Bymes, for his hospitality while in Hong Kong and superb scholarly
guidance, George Edwards, for his indispensible research materials, and Ben Miller, for his guided
exposure to the byzantine world of Hong Kong politics. An earlier draft of this paper was written un-
der the directed research programme at the University of Toronto, under the supervision of Professor
Katherine Swinton, for whom I have countless thanks for taking so much interest in the topic and
providing numerous helpful suggestions during the whole writing process. That draft was awarded
the 1996 University of Toronto Lily Rubenstein Prize in legal writing; accordingly, Philip Anisman is
thanked in this regard. Finally, I wish to extend a special thank you to Martin Valasek and the other
editors of the McGill Law Journal for all their assistance leading up to this final version.

McGill Law Journal 1997
Revue de droit de McGill
To be cited as: (1997) 42 McGill LJ. 649
Mode de r6f~rence : (1997) 42 R.D. McGill 649

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MCGILL LAW JOURNAL!REVUE DE DROIT DE MCGILL

[Vol. 42

Introduction

1. The Changing Context of the Right to Vote in Hong Kong

Introduction

A.
B. A Political Framework in Transition

1. The Political Framework under British Rule

a. Fundamental Institutions
b. Hong Kong’s Three-Tiered Structure of Representative

Government
i. District Boards
ii. Municipal Councils
iii. Legislative Council
iv. Summary of Observed Trends

2. The Political Framework under China’s Basic Law
3.
Impact of the Hong Kong Bill of Rights Ordinance

II. The Meaning of the Right to Vote under the Bill of Rights

A. A Constitutional Right

Implication for Interpretation
a. Generous Interpretation
b. Constitution As a “Living Tree”
c. Purposive Approach
Insights from Jurisdictions with Constitutionally Entrenched Rights
a. Canada
b. United States

B. A Human Right

1. Significance of Status
2.

Insights from International Human-Rights Law
a.
b. European Convention on Human Rights

International Covenant on Civil and Political Rights

C. Text and Context of the Bill of Rights

II1. Purposes Underlying the Right to Vote in Hong Kong

A. Protection of All Other Human Rights
B. Achievement of Self-Government

1. External Right of Self-Determination: Missed Opportunities
2.

Internal Right of Self-Determination: Self-Government

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

651

IV. Hong Kong’s Right-to-Vote Cases

A. Residency Requirement Impugned: Lau San-ching
B. Functional Constituencies Challenged: Lee Miu-Iing

1. “One Person, One Vote”
2. Size of Functional Constituencies
3. Subsidiary Complaints

V. The Future of the Right to Vote in Hong Kong

A. Constitutional Impediments
B. Real and Anticipated Encroachments

1. The Provisional Legislature: Democracy in Reverse
2. Abolition of the Hong Kong Bill of Rights Ordinance
3.

Implementing Article 23 of the Basic Law: Restrictions on
Expression and Assembly

Conclusion

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Introduction

Hong Kong is a place that has only recently come to acquire the right to vote. For
well over a century, the people of Hong Kong had no legal right to determine the con-
duct of public affairs. From time to time, certain sectors of Hong Kong society were
consulted in the development of government policy, but Hong Kong people had to
wait until 1982 before they received any form of elected popular representation. Full
democracy in 1982 was not an option; instead, a process of democratization was
planted to devolve political power gradually to Hong Kong residents.

Despite its short history, the right to vote has brought about significant changes to
the social and political fabric of Hong Kong. In 1991, the right to vote itself under-
went a significant change, being elevated to the status of a constitutional norm with
the passage of the Hong Kong Bill of Rights Ordinance’ (“B.O.R.O.”). Because of the
nature and history of the Hong Kong Bill of Rights,2 the right to vote also acquired the
status of a fundamental human right, which has its roots in the United Nations’ Inter-
national Covenant on Civil and Political Rights.3 The arrival in 1992 of Governor
Christopher Patten, with his package of constitutional reforms, was another signifi-
cant event in the life of Hong Kong’s right to vote. His reforms materialized in the
1994-95 elections, making Hong Kong the most democratic it ever was. On 1 July
1997, the right to vote evolved once again as a result of Hong Kong’s transfer of sov-
ereignty. China’s unilateral action to replace the 1995 elected Legislative Council with
an appointed provisional legislature marks a fundamental step backwards in the prog-
ress of Hong Kong’s right to vote. The establishment of a new constitutional order
under the Basic Law’ also has significant implications for the right to vote.

The overall purpose of this article is two-fold: first and foremost, to determine the
meaning of the right to vote in Hong Kong and to illustrate its application with a criti-
cal analysis of two important cases; second, to demonstrate a purposive method of
interpretation which could presumably be applied to the interpretation of rights con-
tained in the Basic Law. In Part I, the article begins with a description of the changing
political and constitutional context of the right to vote in Hong Kong. Although
somewhat lengthy, this background is necessary for understanding its implications for
the legal meaning of.the right to vote. In Part II, a review of the jurisprudence from
the United States, Canada, and the United Nations and European international human-
rights regimes and an analysis of the text and context of the Bill of Rights discloses
some important ideas about the substance of the right to vote and a method for deriv-
ing the meaning of that right in terms of its underlying purposes. These purposes
emerge from a critical analysis of the political, social and constitutional context of

‘Cap. 383 [hereinafter B.O.R.O.].
2 The Bill of Rights itself (comprising 23 articles) is Part II (s. 8) of the B.O.R.O., ibid. [hereinafter

Bill of Rights].

19 December 1966, Can. T.S. 1976 No. 47,999 U.N.T.S. 171 [hereinafter I.C.C.P.R.].
The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of
China, 3d Sess., 7th National People’s Congress (“N.P.C.”), 4 April 1990, reprinted in 29 I.L.M. 1519
[hereinafter Basic Law]. Also available at http://www.cityu.edu.hk/Basic Law/bl.htm (17 June 1997).

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

653

Hong Kong. In Part I1, it is argued that the two purposes underlying the right to vote
in Hong Kong are the protection of all other human rights and the achievement of
self-government. While these purposes are theoretically grounded, they have also
found expression in actual events in Hong Kong. Part IV illustrates the application of
these two purposes by way of a critical analysis of two pre-transition right-to-vote
cases under the Bill of Rights. In the first case, the issue of residency requirements
was considered; in the second case, Hong Kong’s system of functional constituencies.
Finally, in Part V, a preliminary overview of some potential and live issues relating to
the future of the right to vote under the Basic Law and the new sovereign administra-
tion is undertaken.

Notwithstanding the provisional legislature, if the right to vote continues to exist
in one legal form or another, the struggle for democracy will necessarily find a forum
in the courts of Hong Kong. While much has been written on the progress of democ-
racy in Hong Kong, very little of this literature has viewed the issues from a strictly
legal perspective. Given the real and anticipated encroachments on the right to vote
after 1 July 1997, commentary in this area will hopefully assist in resolving some of
the difficult legal problems emerging from the transition.

I. The Changing Context of the Right to Vote in Hong Kong

A. Introduction
When the United Kingdom acquired Hong Kong in the middle of the nineteenth
century, it was done in three distinct phases corresponding to three distinct geographi-
cal areas of Hong Kong.’ In 1842, China ceded Hong Kong Island to Britain,’ and in
1860, the Kowloon peninsula.’ Then, in 1898, Britain acquired the New Territories, a
significant parcel of land between the mainland and Kowloon, by lease for 99 years.’
China has always condemned the three treaties as being unequal, but had never made
any formal demands to take back Hong Kong until 1982, when negotiations com-
menced. The British have always maintained that the treaties were legal and binding;
but, like the Chinese, they had never taken any steps to discuss with their counterpart
what would happen after 1997, when the New Territories lease would expire. In 1982,
representatives from both countries entered into private discussions about the future
of Hong Kong. After two years of negotiations, the two sides came to an agreement
on the process of decolonization. The product of these discussions was the Sino-
British Joint Declaration on the Question of Hong Kong’ a binding international

Longman Asia, 1994) at 23-26.

‘ See P. Wesley-Smith, Constitutional and Administrative Law in Hong Kong, 2d ed. (Hong Kong:
6 Treaty of Nanking, 29 August 1842, China-U.K, 93 Cons. T.S. 465.
7 Convention of Friendship, 24 October 1860, China-U.K., 123 Cons. T.S. 71.
‘ Convention Respecting an Extension of Hong Kong Territory, 9 June 1898, China-U.K., 186

9 19 December 1984, U.K.T.S. 1984 No. 26, reprinted in 23 I.L.M. 1366 [hereinafter Joint

Cons. T.S. 310.

Declaration].

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treaty signed in 1984. Over the course of approximately six years, the Chinese Gov-
ernment, in conjunction with the Basic Law Drafting Committee and the Basic Law
Consultative Committee, put together the constitutional document that would govern
Hong Kong once it reverted to Chinese sovereignty in 1997.”0

B. A Political Framework in Transition

1. The Political Framework under British Rule

a. Fundamental Institutions

Hong Kong’s political framework” under British rule remained relatively un-
changed since 1843. The main institutions in Hong Kong were the Governor, Execu-
tive Council and Legislative Council. Their powers and functions were set out in a
written constitution, consisting of the Letters Patent and Royal Instructions, both
originally issued in 1843 by way of the Queen’s perogative power.’2 The first six arti-
cles of the Letters Patent established the office of the Governor, the Executive
Council and the Legislative Council. It had often been said that Hong Kong had a
“gubernatorial government”:

mhe ultimate responsibility within the colony for the performance of the gov-
ernment lies in the Governor and the Governor alone. The Governor is head of
the executive branch. He makes policy, he directs its implementation, he is ac-
countable for it to the Secretary of State for Foreign and Commonwealth
Affairs.3

The Governor had complete executive authority in the colony. With his power to ref-
use assent to bills passed in the Legislative Council, he also had an effective veto over
the Legislative Council’s legislative powers.”‘ The people of Hong Kong had no

“o See N. Miners, The Government and Politics of Hong Kong, 5th ed. (Hong Kong: Oxford Uni-
versity Press, 1995) at 1-67 for a more comprehensive account of Hong Kong’s political history and
future.

” “Political framework” refers to the key political institutions that make up Hong Kong’s govern-

ment and their inter-relationships.

,2 See Wesley-Smith, supra note 5 at 42-46. For a complete text of the Hong Kong Letters Patent
(1917-1991) and the Hong Kong Royal Instructions (1917 -1991) as amended to March 1993, see A.
Byrnes & J. Chan, eds., Public Law and Human Rights: A Hong Kong Sourcebook (Hong Kong:
Butterworths, 1993) 18-37. The modem versions of the two documents are based on the 1917 edi-
tions, but they have since been amended a number of times. Although both documents are of equal
status (the courts have so held, despite the Royal Instructions’ apparent subordinate status, being sub-
sidiary legislation coming from art. XII of the Letters Patent (see Lam Yuk-ming v. Hong Kong (A.G.),
[1980] H.K.L.R. 815 (C.A.); see also Wesley-Smith, ibiL at 43-45)), the Letters Patent are more fun-
damental in that they lay out the constitutional framework for Hong Kong, while the Royal Instruc-
tions flesh out the details of that framework.

3 p. Wesley-Smith, “The Present Constitution of Hong Kong” in P Wesley-Smith & A.H.Y. Chen,

eds., The Basic Law and Hong Kong’s Future (Hong Kong: Butterworths, 1988) 5 at 10.

“See Letters Patent, supra note 12, art. X.

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

655

power to impeach the Governor,’5 nor had they ever had any democratic say as to who
should occupy this post.

The only domestic constraint on the executive powers of the Governor was the
requirement to consult the Executive Council prior to executing his authority.” But the
Governor could suspend, “upon sufficient cause”, any member thereof, and with the
Crown’s confirmation, revoke such member’s appointment.’7 Although the Governor
was not bound to follow the Council’s advice, he had to report all unilateral action to
the Crown with reasons.’8 The Council’s constitution in the Royal Instructions pro-
vided for three ex-officio members: the chief secretary, the attorney general and the fi-
nancial secretary of the colony.’9 Since the Executive Council had never had an
elected member,” its evolution, in terms of composition, had been towards acquiring
more “unofficial” membership over “official”. Official members were those with an
existing official position in the Hong Kong or British Government. Unofficial mem-
bers did not have such a position, and were supposed to be more independent and rep-
resentative of local views. Since 1966, there had been a majority of unofficial mem-
bers on this Council.’

Article VI of the Letters Patent provided for a Legislative Council and set out its
composition. The only statement in the Letters Patent of the purpose and function of
the Legislative Council was contained in a single sentence in article VII(l):
The Governor, by and with the advice and consent of the Legislative Council,
may make laws for the peace, order, and good government of the Colony.

Although this article purported to give the Legislative Council a law-making function,
its wording suggests that it was the Governor who had the exclusive law-making
authority, and that the Legislative Council was only supposed to provide advice and a
“check” on the Governor’s discretion.’ Nevertheless, the power to introduce private
member’s bills was suggested by article XXVII of the Royal Instructions, which
elsewhere set the first restriction on the introduction of “private bills”: any ordinance,
the object or effect of which was to place a charge on the Government’s revenue, was
to receive the Governor’s consent before it could even be proposed.’ Second, before

‘ On July 12, 1995, the Democratic Party moved a vote of no confidence against Governor Patten
for his handling of the Court of Final Appeal issue. The motion was defeated by 35 votes to 17, with
four abstentions. It would be interesting to consider what would have happened had the motion
passed. See “A-G rejects attack on rule of law” South China Morning Post (13 July 1995) 4.

6 See Royal Instructions, supra note 12, art. X.
‘7 See Letters Patent, supra note 12, art. V.
” See Royal Instructions, supra note 12, art. X1I.
‘9 See ibid, art. H.
20 There was some discussion of including elected members in 1984 (see Hong Kong, Green Paper:
The Further Development of Representative Government in Hong Kong (Hong Kong: Government
Printer, 1984) [hereinafter 1984 Green Paper] at para. 51).

2 See The Government and Politics of Hong Kong, supra note 10 at 74.
2 This weak foundation allows China to argue that the Legislative Council was and ought to be no

more than an advisory body (see Facts about Sino-British Talks, infra note 78 at 51).

See Royal Instructions, supra note 12, art. XXIV(2)(c).

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any bill became law, it had to receive the assent of the Governor, a matter left to his
absolute discretion.”4

Finally, the Crown had reserved for itself in Hong Kong’s constitution an enor-
mous amount of power. In addition to having absolute authority to choose the Gover-
nor and dictate his decision-making, the Crown had the power to disallow laws
passed by the territory, ‘ and the power to make laws for “the peace, order, and good
government of the Colony.”2 Also, the power to amend the Letters Patent itself was
expressly reserved for her Majesty under article XX.

In the early 1980s, Hong Kong set out on a path to representative government.
Three statutory institutions emerged as part of this development. The District Boards
were created to look after district administration;” two municipal councils –
the Ur-
ban Council28 and Regional Council – were established to manage more regional
matters.29 Together with the Legislative Council, the District Boards and municipal
councils came to be known as Hong Kong’s “three-tiered system” of representative
government. As will be demonstrated in the next section, the history of the right to
vote in Hong Kong is intimately tied with Hong Kong’s history of representative gov-
ernment.

b. Hong Kong’s Three-Tiered Structure of Representative

Government

In 1982, a three-tiered structure of representative government was established in
Hong Kong. At the top of this structure was the Legislative Council, followed by the
municipal councils and the District Boards. The two municipal councils –
the Urban
Council and the Regional Council –
had limited executive authority to address par-
ticular social, cultural and health issues in the urban and rural areas of Hong Kong.
The eighteen District Boards, scattered throughout the territory, had even less execu-
tive authority, and served primarily an advisory function.

i. District Boards

The establishment of the District Boards in 1982 represented a new era of district
administration in Hong Kong.” It was a significant event in Hong Kong’s political

24See Letters Patent, supra note 12, art. X.
= See ibid., art. VIII.
26See ibid., art. IX.
27District Boards Ordinance (Cap. 366).
28 Note that the Urban Council was well established prior to 1982, but it was in 1982 that it first be-

came a body with directly elected members.

29 See Urban Council Ordinance (Cap. 101); Regional Council Ordinance (Cap. 385).
” Before this time, there existed a District Officer scheme, District Advisory Boards in the New
Territories, and City District Committees in the urban areas. See annex I and II of Hong Kong, Green
Paper: A Pattern of District Administration in Hong Kong (Hong Kong: Government Printer, 1980)
[hereinafter 1980 Green Paper] for a detailed description of the district administration scheme in
1980.

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

657

history for a number of reasons. First, it was part of a comprehensive review of the
existing system of district administration, leading to an improved system of local
administration, standardized across the territory. And for the first time in Hong
Kong’s history, a statutory advisory body was to have a number of members directly
elected from a territory-wide franchise. Representative government in Hong Kong
therefore began with the 1982 District Board elections.

Between 1980 and 1982, the Hong Kong Government consulted the public in
designing a rational system of district administration “directed towards better co-
ordination of and responsiveness by the administration at [the] district level and to-
wards greater participation by the inhabitants of each district.”3 In the Government’s
1981 White Paper, two main reasons were given for the proposed reforms. 2 The
scheme was designed to address some of the problems associated with the migration
of people from the over-crowded urban area to the new towns formed just outside the
northern boundary of Kowloon peninsula. The second main factor was the
“increasing complexity of administering Hong Kong particularly at the district
level . It was recognized that districts would have their own individual needs, and
a system of District Boards with elected members would improve monitoring of the
Government’s programmes, and provide greater opportunity for Hong Kong people to
express their views.’

To achieve the above objectives, the Government set up eighteen District Boards
(ten in the urban areas, eight in the New Territories) and a corresponding number of
District Management Committees, which were the official Government counterpart to
the District Boards. These committees consisted of Government officials from a
number of departments, usually the ones which were of most relevance to the needs
of individual districts. The District Management Committees were on the receiving
end of the advice given by the District Boards and were expected to take measures to
effectively resolve district problems. By statute, the District Boards were to advise on
a wide number of issues, including matters affecting people’s well-being, the provi-
sion and use of public facilities and services, the adequacy and priorities of govern-
ment programmes, and the use of public funds for local public works and community
activities.” In addition, a Board could apply for funds to undertake environmental im-
provements and to promote recreational and cultural activities within the district.6

Since 1982, the statutory terms of reference of the District Boards remained un-
changed; however, the Government gradually increased their budgets for undertaking
local projects, and enhanced their advisory role. For example, in the Government’s
1988 White Paper on the development of representative government, the Board’s ad-
visory role was enhanced by requiring Government departments to consult the Boards

” Hong Kong, White Paper: District Administration in Hong Kong (Hong Kong: Government

Printer, 1981) at 3 [hereinafter 1981 White Paper].

2 See ibid. at 4.
33 Ibid.

See ibid.
See District Boards Ordinance, supra note 27, s. 20(1)(a).

36See ibid., s. 20(l)(b).

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about all district matters, and to provide reasons if the Board’s advice was not
heeded.” Later, in his 1992 annual address, Governor Patten opined that the District
Boards were “far too limited in their function”, and that they should be given “full
authority in managing funds for minor environmental improvement projects, local
public works projects and community building activities.”‘” Governor Patten also felt
that they should be responsible for managing community halls and for making ap-
pointments to different local boards.

The composition of the first District Boards reflected the Government’s reluc-
tance to move too quickly in devolving power to the people. All Boards had official
and unofficial appointed members, as well as directly elected members from geo-
graphical constituencies. In addition, ex-officio seats on rural District Boards were
provided for Rural Committee ‘ chairmen, and in the urban area, seats were reserved
for Urban Council members. The 1981 White Paper recognized that the proportion of
unofficial membership would differ from district to district; but the overall goal was
to have an “unofficial majority on all District Boards.”‘ Table 1 shows the composi-
tion of, and percentage of directly elected members on, all the District Boards from
1982 to 1994.

TABLE 1: Composition of District Boards (1982-1994)

Election Appointed
(Official)

Year

Ex-officio

Appointed
(Unofficial)

Directly
Elected

1982
1985
1988
1991
1994

167
0
0
0
0

54
57
27
27
27

137
132
141
140
0

132
237
264
274
346

Directly
Elected

27
56
61
62
93

Source: P.K.W. Fong, District Administration in Hong Kong (Hong Kong: Centre of Urban Studies
and Urban Planning, 1984) at 16; Hong Kong 1983, 1986, 1989, 1992, 1995 (Hong Kong: Govern-
ment Printer).
Over the twelve year period there was a gradual increase in representativeness. The
first major increase in the number of directly elected members took place in 1985,
when official appointed seats were made into elected seats, and an arms-length rela-
tionship was established between the District Boards and the Government. The

3’ See Hong Kong, White Paper: The Development of Representative Government: The Way For-

ward (Hong Kong: Government Printer, 1988) at para. 48 [hereinafter 1988 White Paper].

“‘ Rt. Hon. C. Patten, “The Governor’s Annual Address to the Legislative Council on 7 October
1992” (Hong Kong: Government Printer, 1992) at para. 139 [hereinafter “1992 Governor’s Ad-
dress”].

‘9 Rural Committees were non-statutory bodies that looked after the affairs of local people in the

New Territories.

4′ 1981 White Paper, supra note 31 at 10.

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

659

Boards’ composition was then relatively stable for a period of nine years, with the ex-
ception of the abolition of the thirty Urban Council ex-officio seats in 1988. In 1994,
Governor Patten’s reforms to fully democratize the District Boards were implemented
by abolishing all of the remaining appointed seats.

Wheh the first District Board election was being designed, considerable govern-
ment and public attention was paid to the details of the electoral franchise. These de-
tails were codified in the general Electoral Provisions Ordinance,” whose application
extended immediately to the Urban Council elections and later to the Regional and
Legislative Council direct elections. There were two sets of hurdles to overcome be-
fore one could exercise the right to vote: a qualifying set and a disqualifying set. To
qualify, one had to be twenty-one years or older, and be ordinarily resident in Hong
Kong for seven years immediately preceding the closing date for registration.4’2 An ex-
ception to the latter condition could be made if the person proved that he or she was a
“Hong Kong belonger” (as defined in the Immigration Ordinance”3) at the time or had
previously registered to vote in an Urban Council election. Once qualified, a person
could still be disqualified by the second set of conditions.” Finally, an elector could
only vote in respect of the constituency of his or her residence (as entered in the final
register).3

The qualifying and disqualifying conditions for candidacy were more restrictive.
To qualify as a candidate, one had to be entitled to register as an elector, and in addi-
tion, must have been ordinarily resident in Hong Kong for the ten years immediately
preceding the date of nomination.” Furthermore, some of the disqualifying grounds
for being a elector were made stricter for candidacy.” Interestingly, a candidate need

” Cap. 367.
4′ See ibid., ss. 7-10. It is interesting to note that the 1981 White Paper, supra note 31, did not state
that it was necessary to reside seven years “immediately preceding” the date of registration. Some-
where in the drafting process, this qualification was added.

4 Cap. 115.
“For example, persons who had been sentenced to death or to a term of imprisonment greater than
six months in Hong Kong or any other country and had not suffered the punishment or received a free
pardon, those who were of unsound mind, members of the regular armed forces of the Crown but not
including locally enlisted personnel, persons convicted in the past seven years of specific corruption
and bribery offences, and anyone serving a prison sentence on the date of registration or election were
all disqualified from voting (see Electoral Provisions Ordinance, supra note 41, s. 11).

41 See ibid., s. 12.
“See ibid., s. 18.
41 See ibid., s. 19. For example, the disqualification on the basis of not having suffered punishment
after sentence was broadened to custodial sentences exceeding only three months, and the disqualifi-
cation period for having committed a corruption or bribery offence was extended to ten years instead
of seven. A number of additional categories of persons were also disqualified from being a candidate
(see also 1981 White Paper, supra note 31 at paras. 48-49).

Since 1982 and prior to the impact of the B.O.R.O., supra note 1, the qualifying and disqualify-
ing conditions for voting and candidacy remained relatively unchanged. During the 1987-88 round of
consultations on representative government, there were discussions about changing the minimum age
requirement for voting and candidacy. In the 1988 White Paper, supra note 37, the Government re-
fused to lower the age requirement to 18, observing that “[m]any people felt that more civic education

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[Vol. 42

not have been a resident in the constituency or district in which he or she was run-
ning. The Government felt that such a restriction would inhibit or prevent good can-
didates from being members.”8

To achieve full equality in voting and representation, it is necessary to draw con-
stituencies and distribute seats so as to secure equal-size voting populations. In Hong
Kong, there does not appear to be much study of this issue, at least in the context of
the District Boards, and statistics have not been obtained for this article to enable a
thorough study. Nevertheless, in the 1981 White Paper on district administration, the
Government stressed that “[t]he number of constituencies in a district and their sizes
will vary according to the characteristics of the district concerned ….’ There was no
overall goal to try to achieve equality in constituency sizes. Instead, the Government
emphasized that in the New Territories there would be a wide range of factors deter-
mining the drawing of boundaries, in particular, “the uneven distribution of popula-
tion between new towns and rural areas, the continuing rapid expansion of the new
towns, and the significant different geographical, social and political characteristics of
the districts.””

was needed before people below [21] would be ready for the vote” (ibid at para. 69). The age re-
quirement for voting had to wait until Governor Patten’s reforms in 1994 before it was lowered to 18
(see Electoral Provisions (Miscellaneous Amendments) Ordinance (Ord. No. 10 of 1994), s. 7
[hereinafter Electoral Amendments Ordinance]). One change that did take place in 1987 was that the
“Hong Kong belonger” exception to the seven-year residency requirement for becoming a voter was
expanded to include all Hong Kong “permanent residents”. This meant that a large group of indi-
viduals known as “Chinese residents” who had continuous residence in Hong Kong for at least seven
years could qualify to vote without meeting the slightly stricter general standard of being ordinarily
resident for seven years “immediately preceding” the date of registration (see Electoral Provisions
Ordinance, ibid, s. 8). In 1994, the candidacy disqualification of being a parliamentary member out-
side of Hong Kong was narrowed to not include those officials from the People’s Republic of China
(see Electoral Amendments Ordinance, ibiL, s. 9).
41 See 1981 White Paper, ibid. at para. 42.
49Ibid at par. 59.
” Ibid. The Boundary and Election Commission, a part of Governor Patten’s reforms, was an inde-
pendent body set up in 1993 to draw boundaries for geographical constituencies according to statu-
tory criteria, and to act as a watchdog over the conduct of elections. Of most interest is section 22 of
its governing statute, which set out the criteria for demarcating boundaries which the Commission
had to apply (see Boundary and Election Commission Ordinance (Cap. 432), s. 22). The starting
principle was equality in voting population per representative; but where it was not practicable, it was
possible to deviate up to 25% from the population quota or overall average. In drawing the boundary,
the Commission was to have regard to existing boundaries, community identities or the preservation
of local ties, and physical features such as size, shape, accessibility and development of the relevant
area or any part thereof. The Commission had a discretion to deviate beyond the 25% mark, but only
according to the latter two criteria and only when such deviation was necessary and desirable. See
also infra note 66 for background on the Commission and disparities in the municipal-council elec-
tions.

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

Despite the relatively weak statutory powers of the District Boards, in practice
they did play an important role in the everyday lives of Hong Kong people.’ They
were the vehicle for delivering public opinion to the central authorities. For example,
it was routine for District Board members to hold “Meet the People” sessions ap-
proximately one night a week where they would listen to and try to help with public
complaints 2 The District Boards were also significant from a constitutional perspec-
tive. Although there was no mention of them in Hong Kong’s constitution, their sig-
nificance derived from a link they had with the Legislative Council. Since 1985, when
the Legislative Council started having elected members, the District Boards sent some
of their members to the Legislative Council by way of an electoral college. In the
most recent Legislative Council election (1995), ten District Board members were so
elected.

ii. Municipal Councils

At the second tier of representative government were the municipal councils –

the Urban Council and the Regional Council –
responsible for local administration
in the urban and rural areas of Hong Kong, respectively. Although both councils had
similar constitutions, they did not share the same history. The Urban Council had a
lineage dating back to 1887, when its predecessor, the Sanitary Board, was set up “to
organize the cleansing of streets and houses and to draft public health regulations.”3
In 1936 it acquired its modem name and saw an expansion in its size and functions,
gaining more responsibilities in the area of housing and recreation. The 1971 White
Paper on the Urban Council set in motion its re-constitution, making it financially
autonomous with a clear set of functions and powers set down by statute.’ As part of
the 1982 reforms in district administration, the Urban Council was given elected
membership on the basis of a broad franchise in the urban area, departing from the
previous method of electing Urban Council members, which excluded approximately
eighty percent of the Hong Kong adult population from voting.”

The Regional Council had a shorter history, beginning in April 1986. Prior to its
existence, there was an asymmetry in how local services were delivered to the urban
and rural areas of Hong Kong. In the city, the Urban Council directed the Urban
Services Department; in the country, the New Territories Services Department per-
formed local work under the direction of the central government.” To correct this
asymmetry, and to better address local problems of a rising rural population, it was

5, See S.K Lau & H.C. Kuan, “The 1985 District Board Election in Hong Kong: The Limits of
Political Mobilization in a Dependent Polity”, Occasional Papers No. 8, Centre for Hong Kong Stud-
ies (Hong Kong: Institute of Social Studies, Chinese University of Hong Kong, 1985) at 7-8.

2See The Government and Politics of Hong Kong, supra note 10 at 175.
3 J.YS. Cheng, Government and Public Affairs (Main Book) (Hong Kong: Summerson Eastern,

1987) at 48.

” See Hong Kong (Colonial Secretariat), White Paper: The Urban Council (Hong Kong: Govern-

ment Printer, 1971).

5S See Cheng, supra note 53 at 51.
56See ibidL at 52.

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both fair and efficient to set up a Regional Council on the model of the Urban Coun-
cil. Since 1986, it had held four elections, and had built close connections with its ur-
ban counterpart, the rural District Boards and many of the local organizations in the
New Territories.”

The statutory functions, powers and composition of the two municipal councils
were almost identical. In contrast to the District Boards, the scope of their functions
was more than merely advisory. They were responsible for waste disposal, and had to
ensure certain standards of public health and environmental cleanliness. A second
head of duties related to the promotion of a variety of recreational and cultural activi-
ties in the community. Finally, they acted as a licensing authority for various estab-
lishments.” In addition, the municipal councils were given discretionary powers to
establish facilities for recreational and cultural events, to acquire and hold property, to
accept donations, and to charge reasonable fees for the use of their facilities and
services.” Under their respective statutes, the functions of the municipal councils had
to be discharged through an official implementing body entitled, respectively, the Ur-
ban or Regional Services Department.

Tables 2 and 3 show the history of the composition and representativeness of the
municipal councils. It may appear from Table 2 that representative government in
Hong Kong existed prior to the 1982 District Boards on account of the “elected” Ur-
ban Council seats (since 1952). However, as mentioned earlier, the elections prior to
1982 were based on an extremely narrow franchise and were not of any real demo-
cratic value. Representativeness is a function of both the proportion of elected mem-
bers in a public body and the proportion of the potential electorate responsible for
electing those members. To qualify to vote before 1982, one had to be over twenty-
one, have lived in Hong Kong for “only” three years, and fit into one of twenty-three
categories:’

mhese included all those who had passed the School Certificate Examination
or a similar or high certificate or diploma, who were jurors, salarie[d] taxpay-
ers, ratepayers or businessmen, or who were members of some listed profes-
sional organizations, ranging from airline pilots and barristers to midwives,
nuns and newspaper reporters.”

Clearly the categories favoured those who were educated, could speak English, and
were relatively wealthy, which explains why less than twenty percent of Hong Kong’s
adult population in 1979 could vote in these elections. Hence, these elected members
could not be said to be representative of Hong Kong people in general.

See The Government and Politics of Hong Kong, supra note 10 at 166-67.

58See Urban Council Ordinance, supra note 29, s. 24; Regional Council Ordinance, supra note 29,

s. 25. See also The Government and Politics ofHong Kong, ibid. at 158.

” See Urban Council Ordinance, ibid., s. 25; Regional Council Ordinance, ibid, s. 26.
60 See Cheng, supra note 53 at 51.
61 Ibid

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

663

Table 2: Composition of Urban Council (1946-1994)

Election

Year

1946

1952

1953

1956

1965

1973

1983

1986

1989
1991

1994

Appointed
Members

Ex-officio
Members

Directly
Elected
Members

Elected by

District
Boards

5
5
5
6
6
0
0
0
0
0
0

0
2
4
8
10
12
15
15
15
15
32

0
0
0
0
0
0
0
0
10
10
9

Elected

Members

100

Total
11

Source: J. Cheng, Government and Public Affairs (Main Book) (Hong Kong: Summerson Eastern,
1987) at 48; N. Miners, The Government and Politics of Hong Kong, 5th ed. (Hong Kong: Oxford
University Press, 1995) at 156; Electoral Provisions (Miscellaneous Amendments) Ordinance 1994
(Ord. No. 10 of 1994), s. 14.

Table 3: Composition of Regional Council (1986-1994)

Election Appointed Ex-officio Elected
Year Members Members Members

District
Boards

Elected
Total Members

Directly Elected by

1986

1989

1991

1994

Source: N. Miners, The Government and Politics ofHong Kong, 5th ed. (Hong Kong: Oxford Uni-
versity Press, 1995) at 166; Electoral Provisions (Miscellaneous Amendments) Ordinance 1994
(Ord. No. 10 of 1994), s. 27.

In 1983, the Urban Council held its first elections with the same franchise used in
the 1982 District Board elections. From a legal point of view, the voting conditions in
the Electoral Provisions Ordinance were merely extended to the Urban Council and

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[Vol. 42

later to the Regional Council. It is important to note that, between 1983 and 1991, the
number of directly elected members remained equal to the number of appointed
members. It was the addition of the ten members elected from the District Boards
starting in 1989 which accounted for an apparent increase in the percentage of elected
members in that year and 1991.” Finally, in 1994, as part of Governor Patten’s demo-
cratic reforms, the Urban Council saw the abolition of appointed seats and for the first
time became a fully elected body.”

The Regional Council’s composition changed far less than the Urban Council’s.
When it was set up it 1986, it had a balanced composition of appointed, directly
elected, ex-officio, and indirectly elected members. The ex-officio members were the
chairman and two vice-chairmen of the Heung Yee Kuk, a well-established statutory
body set up to advise the Government on New Territories affairs.” During the 1987-
88 review, the Government reported little public interest in changing the role or com-
position of the Regional Council. ‘ Hence, the composition remained unchanged until
1994, when Governor Patten’s reforms eliminated all the appointed seats.

The qualifying and disqualifying conditions for voting and candidacy mentioned
earlier with respect to District Board elections were the same for elections to the mu-
nicipal councils. Naturally, urban residents could only vote for Urban Council repre-
sentatives, and rural residents could only vote in the Regional Council elections.
However, as with the District Boards, candidates faced no residency requirement. On
the issue of equal voting power and constituency size, there had been very little dis-
cussion from either the Government or the academic community.’

62 Prior to 1989, the link between the District Boards and the Urban Council was made in the op-
posite direction (i.e., members from the Urban Council would go to sit on the District Boards). But
the usefulness of this arrangement was questioned during the 1987-88 round of review, and the link
was reversed, making it more consistent with the existing practice of sending Urban Council mem-
bers up to the Legislative Council (see 1988 White Paper, supra note 37 at para. 51-55).

63 Governor Patten’s reforms were a bone of contention with the Chinese authorities during the
rounds of negotiations which got under way soon after the Governor proposed his reforms in 1992
(see text below, accompanying note 78, for a more detailed discussion of the Sino-British dispute over
Governor Patten’s reforms). The Chinese side opposed the total abolition of appointed seats in the
municipal councils and District Boards at all costs. But the British side did not budge, insisting that
the abolition was “an essential part of the gradual development of Hong Kong’s electoral system …”,
and that it would be hard to justify appointed membership on the bottom two tiers when the Legisla-
tive Council was fully elected (U.K., Secretary of State for Foreign and Commonwealth Affairs,
White Paper on Representative Government in Hong Kong Cm 2432 (London: H.M.S.O., 1994) at
para. 53 [hereinafter 1994 White Paper).

“See Heung Yee Kuk Ordinance (Cap. 1097).
“See 1988 White Paper, supra note 37 at para. 56-58.

6In

the 1981 White Paper, supra note 31, the Government made casual reference to the constitu-
ency size for the Urban Council elections by saying that “the elected members should each be elected
by a single geographical constituency of broadly 250,000 population each” (ibid. at para. 61). Later,
in the 1987 Green Paper on representative government, a passing reference was made to discrepan-
cies in constituency size in the New Territories, but it was not seen as an issue (see Hong Kong,
Green Paper: The 1987 Review of Developments in Representative Government (Hong Kong: Gov-
ernment Printer, 1987) at para. 67). It was reported that constituency sizes for the 1986 Regional

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

665

iii. Legislative Council

While the Legislative Council was the oldest public body of the three tiers, it was
the last to acquire an elected element, in 1991. When plans for developing represen-
tative government came together in 1980-81, the thought of democratizing the central
government was seen as too radical and was far from contemplation. The Govern-
ment repeatedly invoked the “special circumstances” of Hong Kong in order to justify
the slow and bottom-up democratization. An example of its narrative is found in the
Government’s 1980 Green Paper on district administration:

The Executive and Legislative Councils, the central organs of Government,
have evolved, and will continue to evolve as circumstances require, within the
imperatives of stability and dependability which the special circumstances of
Hong Kong dictate.’

Although the Government had accepted, by 1984 and for 1988, that there should be
some form of elected representation on the Legislative Council and that the propor-
tion of official members should be reduced, it still strongly resisted any form of direct
elections (see Table 4).” In its Green and White Papers, the Government continued to
recount the “special political circumstances of Hong Kong” and describe how direct
elections would cause instability and uncertainty in Hong Kong.’ It backed up its
position with the added reason that the balance of public opinion agreed with the
gradual approach.”

The system of elections used in 1985 and 1988 could hardly be described as
democratic. The functional-constituency system was a means of entrenching an exist-
ing practice of appointing elite members from the business and professional sectors to
the Legislative Council, only now with an added air of accountability to the public.7′
From Table 6 it can be seen that the first functional constituencies consisted of the
commercial, industrial, financial, and other professional sectors of the economy. As

Council election ranged from 45,000 in the Sai Kung area to 240,000 in the Tsuen Wan constituency
(see ibid.). In a recent report from a Legislative Council Select Committee on elections, the problem
of equal voting power and constituency size was given some attention (Hong Kong, Select Commit-
tee on Legislative Council Elections, Report of the Select Committee on Legislative Council Elec-
tions, vol. 1 (Report and Minutes of Proceedings) (Hong Kong: Legislative Council, 1992) at 12-18
[hereinafter Select Committee Report]). Although the report only cited problems related to the 1991
Legislative Council election, its strong recommendation for an independent Boundary and Election
Commission (see ibid, c. 2) suggested the need to scrutinize the relative equality of constituency
sizes at all tiers of government. The Boundary and Election Commission that was established in 1993
was in charge of drawing boundaries for the 1995 municipal elections. This Commission was re-
quired to draw boundaries which met certain statutory criteria (see discussion and references supra
note 50).

67 1980 Green Paper, supra note 30 at para. 2.
6 See 1984 Green Paper, supra note 20 at paras. 33-47; Hong Kong, White Paper: The Further
Development of Representative Government in Hong Kong (Hong Kong: Government Printer, 1984)
at para. 25 [hereinafter 1984 White Paper].
“See 1984 Green Paper, ibid. at para. 27.
‘0 See 1984 White Paper, supra note 68 at para. 25.
“‘ See 1984 Green Paper, supra note 20 at para. 38.

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shown in Table 5, the potential electorate for these constituencies was 68,900 in 1985
and 97,838 in 1988, representing less than three percent of the potential electorate for
the District Board elections in 1988.’ The other electoral system that was used
claimed to offer indirect geographical representation via an electoral college com-
posed of all the District Board and municipal council members.” However, at the
time, both these tiers of government consisted of a significant number of appointed or
ex-officio members, and hence the accountability of these elected Legislative Council
members was far removed from the general electorate.

Table 4: Composition of Legislative Council (1984-1995)

Officials
(including

Elected by Elected
Functional

Election

the

Appointed Constitu- Electoral Directly

Year President) Members

encies

College

Elected
Elected Total Members

1984
1985
1988
1991
1995

17
11
11
3
0

30
22
20
18
0

0
12
14
21
30

0
12
12
0
10

0
0
0
18
20

47
57
57
60
60

0
42
46
65
100

Source: N. Miners, The Government and Politics of Hong Kong, 5th ed. (Hong Kong: Oxford Uni-
versity Press, 1995) at 116.

Table 5: Voter Participation in Functional Constituencies (FCs)

(1985-1995)

# of

Potential
Electorate

# of # of FC Contested (Contested Registered
FCs

Seats

Seats)

Voters

Seats

Year

1985
1988
1991
1995

11
13
20
29

12
14
21
30

7
4
9
21

Actual
Voters

24,806
32,968
22,918

68,900
97,838
104,609

46,645
61,052
69,825

2,900,000 –

1,133,125

434,706

Source: Hong Kong 1986, 1989, 1992 (Hong Kong: Government Printer); “The Results in Full”
South China Morning Post (19 September 1995) 4; “Anger at voters’ list delay” South China
Morning Post (21 June 1995) 2.

72Hong Kong 1989 (Hong Kong: Government Printer) at 32 reports a potential electorate of 3.6

million for the 1988 District Board elections.

‘ See 1984 Green Paper, supra note 20 at para. 21.

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

667

Against the backdrop of the Beijing massacre in Tiananmen Square in June 1989,
Hong Kong held its first-ever territory-wide direct elections for eighteen of the sixty
Legislative Council seats in 1991. The introduction of these seats was not triggered
only by the events in Beijing, since the promise of directly elected membership in
1991 had already been made in the Government’s 1988 White Paper. Nevertheless,
the crackdown on the pro-democracy movement in China and its subsequent chilling
effect in Hong Kong was enough to prompt the British Government to go further than
its original promise of having only ten directly elected members for 1991.’ Although
the Government was very concerned about Hong Kong’s level of confidence and
what impact it might have on its future economic stability and prosperity, there were
important reasons not to go beyond eighteen directly elected members, despite a
strong appeal for more by the people of Hong Kong.” In particular, Hong Kong’s fu-
ture constitution, the Basic Law, ‘ had already been promulgated by the Chinese
president and National People’s Congress on 4 April 1990. Since the passing of the
Basic Law, China had always urged the British Government to follow the “principle
of convergence” in its administration of Hong Kong during the period of transition.
This principle meant that all constitutional changes in Hong Kong should be designed
so as to converge with the provisions of the Basic Law. As far as the composition of
the Legislative Council goes, the Basic Law specifies that the number of directly
elected members in 1997 shall be twenty. Hence, in respecting the principle of con-
vergence, the Hong Kong Government did not go beyond that limit, settling for
twenty directly elected members in 1995 and only eighteen in 1991.

When Governor Patten arrived in Hong Kong, the Government position on the
development of democracy seemed to make a complete turn around. In his 1992 an-
nual address to the Legislative Council, he spoke less about the unsettling problems
tending to be associated with democracy and more of its benefits, such as democ-
racy’s role as the ultimate preserver of the rule of law.’ He recognized the principle of
convergence as a necessary constraint on what he could propose for 1995, but was
willing to take advantage of the Basic Law’s “silences” to try to extend the right-to-
vote to more people and devolve more power with that right. During the initial stages
of the Sino-British talks on electoral arrangements, the British were prepared to relax
a number of Governor Patten’s proposals in hopes of reaching a compromise agree-
ment with the Chinese authorities. But neither compromise nor agreement was to
happen; having reached an impasse, the British acted unilaterally. Of course, the Chi-

” C.-K. Lo, “Constitution and Administration” in YW. Sung & M.K. Lee, eds., The Other Hong

Kong Report 1991 (Hong Kong: The Chinese University Press, 1991) 1 at 2.

” In 1990, “[t]he non-government members of the Executive and Legislative Councils (OMELCO)
reached the consensus that by 1995, half of the seats in the Legislative Council should be directly
elected, and that by 1991, the number of directly elected seats should be increased from ten to
twenty” (Lo, ibid).
“Supra note 4.
77 See “1992 Governor’s Address”, supra note 38 at para. 107.

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nese were not very happy about this conduct and both sides published documents
blaming the other side for the failure to reach a consensus.”

Governor Patten’s reforms’ most significant impact was probably on the system
of functional constituencies. Prior to 1995, functional constituencies were heavily
criticized by the public,’ and were not taken very seriously, as evidenced by the high
number of uncontested seats (see Table 5). There were essentially three significant
ways that Governor Patten made the right to vote more meaningful under this elec-
toral system. By introducing nine new functional constituencies (see Table 6), he in-
creased the size of the potential electorate from 104,609 to approximately 2.9 million
people. In doing so, the right to vote was extended to a new class of people –
the
paid labour force. It was hoped that this broadening of the franchise would allow the
system to gain greater credibility.’ Secondly, the abolition of corporate voting elimi-
nated some of the abuses that afflicted the 1991 elections. For example, the electorate
for one of the seats under the Commercial functional constituency consisted of regis-
tered corporations of the Hong Kong General Chamber of Commerce. It was reported
that some candidates took advantage of corporate voting by engaging in “ballot-
stuffing”: their supporters would register all their business subsidiaries to increase
their number of votes.” Finally, Governor Patten responded to the problem of corrup-
tion in small constituencies by trying to expand the size of existing constituencies,
and by ensuring that new ones were sufficiently large to deter collusion.”

Despite these changes, there were still two important issues left unaddressed, both
concerned with equality of voting power. From the point of view of the Hong Kong
electorate, there was still the fundamental problem that some people had two votes,
while others only had one: some had “more representation” than others. The second
issue was an inequality in voting power seen from within the functional-constituency
system itself. The potential-electorate size of functional constituencies could range
from thirty-nine in the case of the Regional Council constituency, to 487,000 in the
Community, Social and Personal Services constituency. The voting power of a single
elector in the former constituency was clearly much greater than the voting power of
an elector in the latter. A response to these two issues was subsequently given by the

” For the British interpretation of events, see 1994 White Paper, supra note 63, and U.K., Foreign
Affairs Committee (House of Commons), “First Report: Relations Between the United Kingdom and
China in the Period up to and Beyond 1997”, vol. I (London: HMSO, 1994) (Chairman: Rt. Hon. D.
Howell) [hereinafter “U.K.-China Relations”]. For the Chinese interpretation and response, see Minis-
try of Foreign Affairs of the People’s Republic of China, Facts about a Few Important Aspects of
Sino-British Talks on 1994195 Electoral Arrangements in Hong Kong (Hong Kong: Joint Publishing
(H.K.), 1994) [hereinafter Facts about Sino-British Talks].
” See S. Mosher, “Seats of Power” Far Eastern Economic Review (29 August 1991) 18; Select
Committee Report, supra note 66 at 24-31; M. Meadowcroft & P. Bradley, Delegation to Hong Kong
Report (London: Electoral Reform Society, 1991) at 4-6.

See “1992 Governor’s Address”, supra note 38 at para. 133.

SI See Mosher, supra note 79 at 19.
82See 1994 White Paper, supra note 63 at para. 73.

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

669

High Court and Court of Appeal as a result of a Bill of Rights challenge. The details
of these decisions will be discussed in Part IV, below.

Table 6: Development of Functional-Constituency Seats

1985

1988

1991

1995

1. Commercial 1
2. Commercial 2
3. Industrial 1
4. Industrial 2
5. Financial
6. Labour (2)
7. Social Services
8. Medical
9. Education
10. Legal
11. Engineers and

associated
professions

1. Commercial 1
2. Commercial 2
3. Industrial 1
4. Industrial 2
5. Finance
6. Accountancy
7. Labour (2)
8. Social Services
9. Medical
10. Health Care
11. Education
12. Legal
13. Engineering,
Architectural,
Surveying & Planning

1. Commercial 1
2. Commercial 2
3. Industrial 1
4. Industrial 2
5. Financial
6. Financial Services
7. Labour (2)
8. Social Services
9. Medical
10. Health Care
11. Education
12. Legal
13. Engineering
14. Architectural,
Surveying & Planning
15. Accountancy
16. Real Estate &
Construction
17. Tourism
18. Urban Council
19. Regional Council
20. Rural

1. Commercial 1
2. Commercial 2
3. Industrial 1
4. Industrial 2
5. Finance
6. Financial Services
7. Labour (2)
8. Social Welfare
9. Medical
10. Health Services
11. Education
12. Legal
13. Engineering
14. Architectural,
Surveying & Planning
15. Accountancy
16. Real Estate &
Construction
17. Tourism
18. Urban Council
19. Regional Council
20. Rural

21. Primary
Production, Power &
Construction
22. Textiles &
Garments
23. Manufacturing
24. Import & Export
25. Wholesale & Retail
26. Hotels & Catering
27. Transport &
Communication
28. Finance,
Insurance, Real Estate
& Business Services
29. Community, Social
& Personal Services

Source: Hong Kong 1986, 1989, 1992 (Hong Kong: Government Printer); “The Results in Full”
South China Morning Post (19 September 1995) 4.

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The qualifying and disqualifying conditions for voting and candidacy contained
in the Electoral Provisions Ordinance applied equally to direct elections at all three
tiers. Of course, the most significant change in the voting conditions from the 1991 to
1995 elections was the lowering of the voting age from twenty-one to eighteen. In
terms of the issue of equal voting power, the 1991 electoral boundaries were criticized
for the disparity in population size between constituencies (e.g., Kowloon Central
with a population of 789,500 and New Territories North with 367,800).” With the es-
tablishment of the Boundary and Election Commission in 1993, there was a conscious
effort to correct any inequalities in voting power due to constituency size differentials.
Judging from the number of registered voters in the twenty geographical constituen-
cies for 1995, it appears that the Commission was successful in drawing fairer
boundaries.” The largest differential in terms of registered voters was between New
Territories North with 99,352 voters and New Territories Southeast with 147,995.”

iv. Summary of Observed Trends

The trends that emerge from the preceding sections are significant because they
help to form the historical background for the legal analysis of the meaning of the
right to vote. A summary of these trends can be organized around the “functional” and
“intrinsic” dimensions of the right to vote. It is a truism to say that the right to vote
means more than the physical exercise of inserting a piece of paper in a box every
three or four years. The right to vote is intimately related to the idea of democracy,
that the people freely determine the life of their country. If the right is to have more
than its literal meaning, then its exercise must give rise to and be manifested in public
bodies that have real political power. Electing members to a “puppet institution”, with
no effective voice in how the affairs of a country are to be conducted, is to deny the
functional value of the right to vote. Even if there are elections to effective political
bodies, the right to vote is still a mockery if there exists a majority of appointed mem-
bers that can always out-vote the elected ones.

Apart from this functional dimension, the exercise of the right to vote can also
affirm basic intrinsic values. Democracy implies that all the people of a nation have
an opportunity to express their political choices. There would be no democracy nor a
meaningful right to vote if only a select group of individuals could have such expres-
sion. It is equally repugnant if certain groups have more votes than others. A related
problem is ensuring that everyone’s vote has the same weight in determining the
likely candidate; that is to say, there should be equal voting power, in the same way
that everyone should have the same number of votes. In elections based on geo-
graphical constituencies, one’s voting power depends on the number of electors in the

See Select Committee Report, supra note 66 at 14.
,It is interesting to note that the Boundary and Election Commission’s Report on the 1995 Legis-
lative Council Election (Hong Kong: Constitutional Affairs Branch, Government of Hong Kong,
1996) contains no discussion whatsoever about constituency sizes. For future study, it would be inter-
esting to see what precise impact the Commission has had on the voting power of electors.

‘r “The Results in Full” South China Morning Post (19 September 1995) 4. The parallel differential

for 1991 was 121,989 voters in New Territories North and 287,373 in Kowloon Central.

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

voting constituency. Hence, the relative size of voting constituencies is an important
factor in ensuring equal voting power. Values of equality, universality and expression
are part of the intrinsic dimension of the right to vote.

From the perspective of the functional dimension of the right to vote, there are
two important trends in Hong Kong’s history under British rule that are worth noting.
First, the democratization of the three tiers began at the tier with the least political
power, the District Boards, and gradually developed to the tier with the most power,
the Legislative Council. While direct elections were introduced to the District Boards
in 1982, the Legislative Council had to wait until 1991 before acquiring directly
elected members. Second, within each tier there was a gradual increase in the propor-
tion of elected members. In other words, there was a gradual devolution of power to
the Hong Kong people along each tier. These two trends show clearly that Hong
Kong did not get democracy “overnight”.

The trends associated with the intrinsic dimension of the right to vote show far
less change. For the geographical direct elections, the qualifying conditions for voting
and candidacy in all three tiers remained relatively constant from 1982 to 1994. It was
only after Governor Patten’s reforms (and, as we will see, the impact of the B.O.R.O.)
that there was greater liberalization in these conditions. With respect to the issue of
equal voting power in the geographical constituencies, the Hong Kong Government
has traditionally paid little attention to differences in constituency sizes. Again, it was
only after the arrival of Governor Patten and his introduction of a Boundary and
Election Commission’ in 1993 that an attempt was made to equalize the size of con-
stituencies. Despite all of Patten’s reforms, the functional constitutencies still pre-
sented a great challenge to ensuring the equality of the right to vote in Hong Kong. In
a single move, his reforms expanded the functional-constitutency electorate almost
thirty fold. Nevertheless, the disparity in constituency size remained great, and a sig-
nificant portion of the population were excluded, restricted to their vote in the geo-
graphical constituencies.

2. The Political Framework under China’s Basic Law

On 1 July 1997 the Letters Patent and Royal Instructions expired and the Basic
Law became the governing constitutional document of what is now known as the
Hong Kong Special Administrative Region (“H.K.S.A.R.”). The Basic Law is a Chi-
nese law, adopted by the National People’s Congress and promulgated by the presi-
dent of the People’s Republic of China on 4 April 1990. The document derives its
authority from two separate sources. First, article 31 of the Constitution of the Peo-
ple’s Republic of China7′ empowers the State to establish special administrative re-
gions when necessary, and to enact a law for this purpose “in the light of the specific
conditions” of that region. The second source is the Sino-British Joint Declaration on

See Boundary and Election Commission Ordinance, supra note 50.
The Constitution of the People’s Republic of China, 5th Sess., 5th N.P.C., 4 December 1982. An

English version was published by the Foreign Languages Press (Beijing: 1983).

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the Question of Hong Kong,” signed on 19 December 1984. Under article 3 of the
Joint Declaration are listed the policies of China regarding Hong Kong, ending with
sub-article 12, which states that the “basic policies … will be stipulated, in a Basic
Law … and they will remain unchanged for 50 years.”

The Basic Law consists of a preamble, nine chapters, and three annexes. At the
time that the Basic Law was passed, a number of written decisions, which appear to
interpret or otherwise fill the gaps in the Basic Law, were also adopted by the Na-
tional People’s Congress. The fundamental principle that informs the whole document
and is mentioned in the preamble is the principle of “one country, two systems”. The
principle is most succinctly captured by the first two articles of the first chapter,
which sets out the general principles of the Basic Law. Article 1 affirms the first part
of the principle by declaring that the H.K.S.A.R. “is an inalienable part of the Peo-
ple’s Republic of China.” Article 2 then elaborates on what the concept of “two sys-
tems” means:

The National People’s Congress authorizes the Hong Kong Special Adminis-
trative Region to exercise a high degree of autonomy and enjoy executive, leg-
islative and independent judicial power, including. that of final adjudication, in
accordance with the provisions of this Law.

Chapter II goes on to describe the relationship between the Central Authorities and
the H.K.S.A.R., and further delineates what is meant by a “high degree of autonomy”.
On its face, the autonomy promised is far greater than that enjoyed by provinces or
regimes in most federal states. Except for defence and foreign affairs,8
the
H.K.S.A.R. has almost exclusive jurisdiction to manage its social, political and eco-
nomic affairs. It also has its own separate legal system, which will continue to apply
the common law, rules of equity, ordinances, subordinate legislation and customary
law.’ Chapter III of the Basic Law enumerates Hong Kong residents’ fundamental
rights and duties. For the purposes of this paper, there are two articles worth highlight-
ing. The guarantee of the right to vote is contained in article 26: “Permanent residents
of the Hong Kong Special Administrative Region shall have the right to vote and the
right to stand for elections in accordance with law.” And in article 39, there is an ex-
plicit recognition that the provisions of the International Covenant on Civil and Po-
litical Rights” “as applied to Hong Kong shall remain in force and shall be imple-
mented through the laws of the [H.K.S.A.R.].”

The political structure of the H.K.S.A.R. is detailed in chapter IV of the Basic
Law. Despite the earlier promise of a high degree of autonomy, some of the most
significant decisions in setting up the political structure have been left to the Central
People’s Government. The appointment of the Chief Executive and the principal of-
ficials of the executive authorities of the H.K.S.A.R. are exclusively in the hands of

Joint Declaration, supra note 9.

‘0See Basic Law, supra note 4, art. 13.
9′ See ibid., arts. 8, 18.
91 I.C.C.PR., supra note 3.

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

673

the Central People’s Government.’ Furthermore, there are special rules for the estab-
lishment of the first government and Legislative Council of the H.K.S.A.R., contained
in one of the accompanying decisions of the National People’s Congress.” This deci-
sion empowered the Standing Committee of the National People’s Congress to ap-
point members to a Preparatory Committee, which had sole responsibility for setting
up the Selection Committee for the first Chief Executive.” The Preparatory Commit-
tee was also to be responsible for confirming the members of the H.K.S.A.R.’s first
Legislative Council.’

In designing the political structure of the H.K.S.A.R., the Chinese Government
opted to retain the essential elements of the old colonial system. The Chief Executive,
like the Governor before him, enjoys supreme executive powers. He (we now know
the first Chief Executive is Tung Chee-hwa) has the ultimate power to appoint and
remove judges and holders of public office, to promulgate bills passed by the Legis-
lative Council, to decide on government policies and to issue executive orders. The
people of the H.K.S.A.R. will not vote to select the Chief Executive for the first ten
years (two terms). The only official vehicle for public input on the selection of the
Chief Executive is through the prescribed Election Committee, consisting of only 800
Hong Kong residents from selected sectors of society.” Under articles 49 and 50 of
the Basic Law, the Chief Executive has the power to dissolve the Legislative Council
in three separate situations: (1) a Legislative Council bill has been turned back twice
on the grounds that it is “not compatible with the overall interests of the Region”; (2)
the Legislative Council has refused to pass a budget; or (3) the Legislative Council
has refused to pass any other “important bill introduced by the government”. The only
limitation on this power is that the Chief Executive must first try to reach a consensus
by way of consultations and consult the Executive Council before exercising the
power. The corollary power of the Legislative Council to impeach the Chief Execu-
tive is far from equal and has many more preliminary hurdles. The Legislative
Council must pass two motions, give the Chief Justice of the Court of Final Appeal a
mandate to set up an independent investigation committee, receive a favourable rec-
ommendation from the committee, pass another motion (by a two-thirds majority),
and finally report the decision to the Central People’s Government, which itself ulti-
mately decides whether to impeach the Chief Executive.”

9 See Basic Law, supra note 4, art. 45 & annex I. Annex I stipulates that the Chief Executive is to

be elected by the Election Committee and appointed by the Central People’s Government

“‘ See Decision of the National People’s Congress on the Method for the Formation of the First
Government and the First Legislative Council of the Hong Kong Special Administrative Region, 3d
Sess., 7th N.RC., 4 April 1990 [hereinafter First Formation Decision].

9′ See ibid., paras. 2, 3.
9′ See ibid., para. 6.
96 See Basic Law, supra note 4, art. 48.
9′ Annex I of the Basic Law, ibid, provides that its 800 members must be selected from specific
listed sectors (para. 2), but the manner of selection is left to an electoral law enacted by the
H.K.S.A.R. “in accordance with the principles of democracy and openness” (para. 3).

” See Basic Law, ibid, art. 73(9).

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The constitutional relationship between the Chief Executive, the Executive
Council and the Legislative Council also bears a strong resemblance to the British
colonial system. The Executive and Legislative Councils remain separate bodies; the
members of the former are appointed by the Chief Executive,” while the latter body is
constituted by election.'” The relatively weak advisory function of the Executive
Council continues’ and, as was true with the former Governor, the Chief Executive is
not bound by the advice of the Council.'” In contrast to the Letters Patent, the powers
and functions of the Legislative Council are clearly enumerated in article 73, which
lists ten items, starting with the power “[t]o enact, amend or repeal laws, in accor-
dance with the provisions of [the Basic Law] and legal procedures.” The term of of-
fice of the Legislative Council does not initially coincide with that of the Executive
Council and the Chief Executive, both of which have a five year term beginning in
1997.03 The first Legislative Council, while also originally meant to begin in 1997,
was only to last for two years, and then be reconstituted every four years.'” The origi-
nally intended composition of the Legislative Council for the first ten years is shown
in Table 7.

Table 7: Composition of the Legislative Council under the Basic

Law (1997-2003)

Election Committee

Functional

Constituencies

Direct Elections

Total

1997
1999
2003

10
6
0

30
30
30

20
24
30

60
60
60

Source: Basic Law, supra note 4, annex If; First Formation Decision, supra note 93, para. 6.

Although the Basic Law gave explicit recognition to the precise number of legis-
lators on the first Legislative Council of the H.K.S.A.R., it failed to define the com-
position of its election committee or of the electorate for its functional constituencies.
It was this silence in the text that provided an opportunity for Governor Patten to de-
mocratize Hong Kong and still claim that the 1995 Legislative Council converged
with the specifications in the Basic Law. Governor Patten wanted to ensure conver-
gence because a decision of the National People’s Congress, adopted at the same time
as the Basic Law, provided that the 1995 Legislative Council members could continue
so long as the composition was in conformity with the Ba-
to sit in the 1997 body –
sic Law, the members promised to uphold the Basic Law and to pledge allegiance to

“See ibid, arts. 48(5), 55.
‘” See ibid, art. 68.
‘o’ See ibid, arts. 54, 65.
‘”‘See ibid, art. 56.
” See ibid., arts. 46,55.
‘0 See ibid., art. 69.

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

675

the H.K.S.A.R., and were confirmed by the Preparatory Committee.’ 5 The possibility
of this so-called “through train” for the Legislative Council members was frustrated
by the Chinese Government in retaliation against Governor Patten’s unilateral action
to press ahead with his reforms. In December 1996, the Chinese Government estab-
lished a “provisional” legislature, with members chosen by a China-appointed selec-
tion committee, to replace the 1995 elected Legislative Council on 1 July 1997.”

The Basic Law provides that the method for composing the Legislative Council
after 2007 can be changed, but it would require a two-thirds majority of the Council
and the consent of the Chief Executive.”‘ The only indication of how the Legislative
Council might be formed in 2007 and thereafter is from the general statement found
in article 68 of the Basic Law:

The method for forming the Legislative Council shall be specified in the light
of the actual situation in the Hong Kong Special Administrative Region and in
accordance with the principle of gradual and orderly progress. The ultimate
aim is the election of all the members of the Legislative Council by universal
suffrage.

One final element of the H.K.S.A.R.’s political structure mentioned in the Basic Law
is “district organizations”. Article 97 provides that these may be established, not to be
“organs of political power”, but to be consulted by the government “on district ad-
ministration and other affairs, or to be responsible for providing services in such
fields as culture, recreation and environmental sanitation.” It appears this section is re-
ferring to the system of District Boards, but it is not clear what the prohibition on be-
ing an organ of political power implies. While the Basic Law thus constitutionalizes
the possibility of District Boards, it makes no mention of the municipal councils.

Impact of the Hong Kong Bill of Rights Ordinance

As early as 1987, there was already some public interest in establishing a consti-
tutional bill of rights in Hong Kong.'” But the Government was not entirely enthusi-
astic about this prospect and repeatedly said that the matter would have to wait until
the Basic Law was passed, so as to achieve consistency.” However, the Government
could not ignore the massacre in Tiananmen Square on 4 June 1989, nor could it shut
its eyes to the over one million demonstrators who took to the streets of Hong Kong
in support of the pro-democracy students in Beijing. In response to the shattered con-
fidence of the colony, the Governor announced on 11 October 1989 that Hong Kong
would get a bill of rights.”‘ After a period of consultation and debate – primarily over
how the bill of rights would be entrenched, whether it would apply between private

‘0’ See First Formation Decision, supra note 93, para. 6.
“‘6See R. Mickleburgh, “Hong Kong frets as rulers selected: Pro-China group picks legislators” The

[Toronto] Globe and Mail (21 December 1996).

, 7 See Basic Law, supra note 4, annex JI, part II.
203 See N. Jayawickrama, “The Bill of Rights” in R. Wacks, ed., Hunan Rights in Hong Kong

(Hong Kong: Oxford University Press, 1992) 37 at 66.

” See Jayawickrama, ibid. at 66-70.
“o See ibid. at 72.

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citizens, and whether there would be a savings period to allow the Government to
amend certain laws to comply with it – Hong Kong’s Bill of Rights came into effect
on 8 June 1991.”

When the B.O.R.O. – which contains the Bill of Rights –

came into force, Hong
Kong entered a new era in the protection of fundamental human rights. The move was
motivated primarily by the crisis of confidence amongst the inhabitants of Hong
Kong, a result of the violence directed at pro-democracy supporters in Beijing during
the summer of 1989.12 Since Britain was not ready to grant a right of abode to the en-
tire population of Hong Kong, it had to come up with a bold alternative: an entrench-
ment of fundamental human rights in the territory that would survive past 1997.”

Although the B.O.R.O. is like any other Hong Kong ordinance in form, it has
constitutional status in substance. The source of this status comes from the B.O.R.O.
itself, Hong Kong’s Letters Patent, the Joint Declaration, and the Basic Law. Within
the B.O.R.O. itself, section 3 provides that all pre-existing legislation is to be con-
strued so as to be consistent with the ordinance where possible (subsection 1); where
it is not, the legislation is, to the extent of the inconsistency, repealed (subsection 2).
Pre-existing legislation is defined to mean all legislation enacted before the date the
B.O.R.O. came into operation.”‘ As for all subsequent legislation, section 4 provides
only that this legislation be construed so as to be consistent with the International
Covenant on Civil and Political Rights (“I.C.C.P.R.”) as applied to Hong Kong, “to
the extent that it admits of such a construction”; it does not provide for its repeal if
such construction is not possible. To ensure that the Bill of Rights would adequately
police subsequent legislation, an amendment was made to Hong Kong’s constitution.
Article VII(3) was added to Hong Kong’s Letters Patent, providing that “[n]o law of
Hong Kong shall be made after [8 June 1991] that restricts the rights and freedoms
enjoyed in Hong Kong in a manner which is inconsistent with [the I.C.C.P.R.] as ap-
plied to Hong Kong.” The reference to “the I.C.C.P.R. as applied to Hong Kong” is
equivalent to saying “the B.O.R.O.”, since the content of the Bill of Rights (contained
in section 8) is taken almost word for word from the I.C.C.P.R. The choice of words
was deliberate since the same phrase is found in both the Basic Law”‘ and the Joint

“.. See ibid at 72-73. As mentioned earlier, the Bill of Rights, supra note 2, comprising 23 articles,

was enacted as Part II (s. 8) of the B.O.R.O.. supra note 1.

“2 See Jayawickrama, ibid. at 70ff.; F Ching, “Red Star over Hong Kong” (1989) 6 World Policy J.

657.

” See Bymes & Chan, eds., supra note 12 at 215.
“,4 See B.O.R.O., supra note 1, s. 2.
“‘ Article 39 of the Basic Law declares: “The provisions of the [I.C.C.P.R.] … as applied to Hong
Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special
Administration Region.”

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

Declaration.”‘ It was felt that this was the most practical way to ensure that the
B.O.R.O. would continue to apply effectively past 1997.”‘

The passage of the B.O.R.O. marked a significant chapter in the history of the
right to vote in Hong Kong. Prior to 1991, the right to vote for all three tiers of gov-
ernment was defined by statute in the Electoral Provisions Ordinance’ and the Legis-
lative Council (Electoral Provisions) Ordinance.”‘ A new expression of the right to
vote is now found in article 21 of the Bill of Rights:

Every permanent resident shall have the right and the opportunity, without
any of the distinctions mentioned in article 1(1) and without unreasonable re-
strictions –

(a) to take part in the conduct of public affairs, directly or through freely
chosen representatives;
(b) to vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing
the free expression of the will of the electors;
(c) to have access, on general terms of equality, to public service in Hong
Kong.

The grounds of distinction mentioned in article 1(1) are “race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.” Articles 21 and 1(1) must also be read together with section 13 of the
B.O.R.O., which is an explicit limitation on the article 21 right: “Article 21 does not
require the establishment of an elected Executive or Legislative Council in Hong
Kong.” The United Kingdom ratified the I.C.C.P.R. on 20 May 1976, at which time it
also extended its application to Hong Kong. But in ratifying it, the U.K. made a reser-
vation –
to article 25, the I.C.C.P.R.’s
equivalent of article 21 of the Bill of Rights.’0

similar to the one contained in section 13 –

Once the right to vote acquired its constitutional and human-rights status, it
seemed to take on a life of its own. As more Hong Kong people and legislators be-
came aware of this superior right, it began to evolve in ways which the Government

226 Article XIII of annex I provides, inter alia, that “[tihe provisions of the International Covenant
on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights
as applied in Hong Kong shall remain in force.”

” See Byrnes & Chan, eds., supra note 12 at 215-16.
,,8 Supra note 41.
“‘ Cap 381.
.0 The relevant reservation reads:

[T]he Government of the United Kingdom declare that:

(c)

In relation to Article 25 of the Covenant, they must reserve the right not to apply:
(i) Sub-paragraph (b) in so far as it may require the establishment of an elected leg-
islature in Hong Kong … (United Nations, Multilateral Treaties in respect of
which the Secretary General Performs Depositary Functions: List of Signatures,
Ratifications, Accessions, etc. as at 31 December 1976 (New York, 1977) at 104
(UN Doc. ST/LEG/SER.D/10, Sales No. E.77.V.7)).

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probably never expected.’2’ The right was no longer a mere statutory creature, be-
stowed on the Hong Kong people at the pleasure of the Crown, but a fundamental
human right that could be used to scrutinize past and future Government conduct.
Debates over the meaning of the right to vote found a new home in the courts of
Hong Kong. Despite Government reluctance to broaden the base of the potential
electorate and candidates, the case of Lau San-ching v. Apollonia Liu,’2 in January
1995, successfully challenged the constitutionality of the ten-year residency require-
ment for candidacy. Several months later, another case, Lee Miu-ling v. Hong Kong
(A.G.),”‘ questioned the validity of the functional-constituency system of elections. It
was argued in both the High Court and the Court of Appeal that this system denied
“equal suffrage” at various levels. Sadly, the arguments were rejected by the Court of
Appeal and further leave to the Judicial Committee of the Privy Council (“Privy
Council”) was denied.

The B.O.R.O. also had a significant impact outside the courts, in the realm of the
legislature. Many of the democratically minded legislators initiated their own reforms
to discriminatory electoral laws and practices. One area of reform dealt with the tradi-
tional practice of excluding women from participating in rural elections (in a system
of representative government that lay below but had links to the main three-tier sys-
tem).’2 Another area of contention was the traditional exclusion of prisoners and ex-
convicts from voting and eligibility for office.”n

II. The Meaning of the Right to Vote under the Bill of Rights

Deriving the meaning of any right is an exercise of interpretation. In interpreting
the right to vote under the Bill of Rights, a justifiably comprehensive method will be
employed. It is comprehensive since it seeks out as many sources as might disclose
some truths about the right to vote. In particular, recognition of its constitutional and
human-rights status has various implications for its meaning. Furthermore, it is neces-
sary to recognize that the right may acquire a certain meaning when viewed through
its particular historical, social and political context. The analysis is said to be justifi-
able not because of any single governing theory, but based on pronouncements from
judicial decisions and legal scholars of prominent common-law jurisdictions, includ-

.2 See generally M.C. Davis, “Human Rights and the Founding of the Hong Kong Special Admin-

istrative Region: A Framework for Analysis” (1996) 34 Colum. J. Transnat’l L. 301 at 318-21.

“(1995), 5 H.K.P.L.R. 23 (H.C.), Cheung J. [hereinafter Lau San-ching].
” (1995), 5 H.KPL.R. 181 (H.C.), Keith J. [hereinafter Lee Miu-ling], aff’d (1995), 5 H.K.P.L.R.

585 (C.A.) [hereinafter Lee Miu-ling (C.A.)].

2The Sex Discrimination Ordinance (Ord. No. 50 of 1995), passed in June 1995, provided that it
was unlawful to discriminate on the grounds of sex or marital status with respect to the eligibility to
vote for and to be elected or appointed as a village representative, a member of a Rural Committee or
the Heung Yee Kuk. In case of a breach, a women could bring a complaint to the Equal Opportunities
Commission established under the statute, and the Secretary for Home Affairs was required not to ap-
prove a person as a village representative or not recognize the status of a Rural Committee.

” See Electoral Provisions (Amendment) Bill 1995, Hong Kong Government Gazette, C1941, cl. 7.
This Bill proposed to eliminate all grounds of disqualification from voting related to criminal convic-
tions and sentence.

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

679

ing Hong Kong itself. This broad analysis of the right to vote under the Bill of Rights
will be followed by the identification of two purposes for the right to vote – protec-
tion of all other human rights and achievement of self-government –
and a more
specific discussion of the two recent Hong Kong cases mentioned earlier, Lau San-
ching and Lee Miu-ling.

A. A Constitutional Right

Implication for Interpretation

It is well established throughout the common-law world that there are special
rules for interpreting a country’s constitution as opposed to mere statutes. An often
quoted sentence from a decision of the Privy Council captures this notion perfectly.
The accepted approach is

to treat a constitutional instrument … as sui generis, calling for principles of
interpretation of its own, suitable to its character as already described, without
necessary acceptance of all the presumptions that are relevant to legislation of
private law. 26

These special rules are sometimes collectively known as the “organic” theory of
interpretation.” For the sake of clarity, it is possible to identify three central principles
behind this method of interpretation. These principles are not meant to be steps in any
technical method, but together interact to give form to the exercise of constitutional
interpretation.

a. Generous Interpretation

In a series of modem cases dealing with the interpretation of constitutions of past
and present colonies, the Privy Council affirmed the principle that provisions in a
constitution, particularly those protecting fundamental human rights, should be given
a “generous interpretation” so as to avoid “the austerity of tabulated legalism”.’2 This
principle recognizes that constitutions are often written in ambiguous language that
can have a number of meanings. The problem is more acute when dealing with the
“open-textured” nature of human-rights provisions.'” A generous approach acts as a
presumption against narrow definitions. But this is not to say that the more generous

,16 Minister of Home Affairs v. Fisher (1979), [1980] A.C. 319 at 329, Lord Wilberforce [hereinafter

Fisher].

27 See R Wesley-Smith, “Constitutional Interpretation” in P Wesley-Smith, ed., Hong Kong in
Transition: Problems & Prospects (Hong Kong: Faculty of Law, University of Hong Kong, 1993)
[hereinafter Problems & Prospects] 51 at 60ff.

.28 Fisher, supra note 126 at 328. See also Ong Ah Chuan v. Public Prosecutor (1980), [1981] A.C.
648 at 670; Attorney-General of the Gambia v. Jobe, [1984] A.C. 689 at 700; Hong Kong (A.G.) v.
Lee Kwong-kut, [1993] 2 H.K.C.L.R. 186 at 194 (PC.).

,9 Madame Justice B. Wilson, “The Making of a Constitution: Approaches to Judicial Interpreta-
tion” [1988] Public Law 370 at 372, referring to H.L.A. Hart, The Concept of Law (Oxford: Claren-
don Press, 1961) at 121-32.

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interpretation will always be accepted as the proper one. “Respect must be paid to the
language which has been used and to the traditions and usages which have given
meaning to that language.”” Hence, the limits of the generous approach will be found
in the text of the constitution itself and in its historical context.

b. Constitution As a “Living Tree”

The “living tree” principle provides a clearer picture of the contours of the previ-
ous interpretive principle. The classic statement of this approach was given in a 1930
Privy Council case, Edwards v. Attorney-General for Canada,” dealing with Can-
ada’s constitution: “The British North America Act planted in Canada a living tree
capable of growth and expansion within its natural limits.’..2 Within this single sen-
tence are two profound ideas which illuminate constitutional interpretation. It recog-
nizes that the meaning of words in a constitution must be able to evolve and grow
with changing social circumstances. At the same time, there are elements of the con-
stitution which cannot be changed, such as its text and history, and which delineate
the “natural limits” of its evolution.

c. Purposive Approach

These last two principles provide only broad notions of how to approach consti-
tutional interpretation. The purposive approach supplements them by focusing atten-
tion on the purpose of the provision or right being interpreted. This approach obvi-
ously has the most instrumental value when interpreting human rights. The Canadian
constitutional jurisprudence has made repeated use of this approach in construing the
Canadian Charter of Rights and Freedoms.”‘ Madame Justice Bertha Wilson, a for-
mer justice of the Supreme Court of Canada, has described the purposive approach as
an exercise at two levels:

Rights should be interpreted in accordance with the general purpose of having
rights, namely the protection of individuals and minorities against an overbear-
ing collectivity….

I would submit further that judges should strive to capture within their de-

cisions the purpose of each individual right.””

In trying to find the purpose of a right, it is necessary “to delineate the nature of
the interests it is meant to protect.’3 . The Supreme Court of Canada has provided
some guidance on how these interests should be determined. In R. v. Big M Drug

“3 Fisher, supra note 126 at 329.
” [1930] A.C. 124, Lord Sankey [hereinafter Edwards].
, 2 bid at 136.
,3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c,

11 [hereinafter Charter].

‘4 Wilson, supra note 129 at 381.
“‘ Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 157, 11 D.L.R. (4th) 641, 14 C.C.C. (3d) 97,

Dickson J.

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

Mart Ltd., 6 Dickson J. describes this interpretive exercise in a comprehensive manner
that encapsulates the essence of all three principles:

the purpose of the right or freedom in question is to be sought by reference to
the character and the larger objects of the Charter itself, to the language chosen
to articulate the specific right or freedom, to the historical origins of the con-
cepts enshrined, and where applicable, to the meaning and purpose of the other
specific rights and freedoms with which it is associated within the text of the
Charter. The interpretation should be … a generous rather than a legalistic one,
aimed at fulfilling the purpose of the guarantee and securing for individuals the
full benefit of the Charter’s protection. At the same time it is important not to
overshoot the actual purpose of the right or freedom in question, but to recall
that the Charter was not enacted in a vacuum, and must therefore … be placed
in its proper linguistic, philosophic and historical contexts.’37

In addition to the linguistic, philosophic and historical context of the right, the meta-
phor of the “living tree” also suggests that the broader social context is a fertile source
from which to infer the interests that underlie the right. Professor Robert Sharpe has
recognized this point when he writes that “[t]he concept of a constitutional right or
freedom completely abstracted from social context … is devoid of meaning.”’38 Ma-
dame Justice Wilson makes a similar point when she says that “the scope of the right
must be continually re-assessed in light of changing social circumstances and con-
temporary social theory.’3 9

In Hong Kong, there is precedent for using this broad method of constitutional
interpretation, described by the three principles above, to interpret both the Letters
Patent and the Bill of Rights. In Hong Kong (A.G.) v. David Chiu,” the Hong Kong
Court of Appeal followed a series of Privy Council cases, including the Edwards case,
to give a generous interpretation to the Hong Kong Letters Patent. Justice Fuad
stated,

I have no doubt, therefore, that a generous and purposive construction must be
put upon Article XIV and the rest of the Letters Patent, this is not to say, of
course, that the ordinary canons of construction have no place in constitutional
interpretation.”‘

The issue in this case was whether the Governor could validly delegate the power to
appoint magistrates to the Chief Justice, despite the Governor’s apparently exclusive
power contained in article XIV of the Letters Patent. The interpretation was indeed
generous and contrary to normal strict constructions. The Court read into the article
incidental powers to delegate even though there were other articles which expressly
provided when the Governor could delegate authority. In accordance with the “living
tree” metaphor, the Court was “driven by compelling force”- by the modem context

,36 [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 18 C.C.C. (3d) 385 [hereinafter cited to S.C.R.].
,’ Ibid at 344.
.38 R.J. Sharpe, “A Comment on David Beatty’s ‘A Conservative’s Court: The Politicization of

Law’

(1991) 41 U.T.L.J. 469 at 479.

“‘ Supra note 129 at 383.
“o [1992] 2 H.K.L.R. 84.
“‘ Ibid. at 96.

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in which the Governor would have to personally appoint the approximately 190,000
civil servants if he could not delegate his authority.”‘

Hong Kong’s Bill of Rights has been given similar interpretive treatment by both
the Hong Kong Court of Appeal and the Privy Council. One of the first pivotal Bill of
Rights cases decided by the Court of Appeal laid down basic interpretive principles,
which have been repeatedly cited in subsequent cases. In R. v. Sin Yau-ming,”‘ the
Court held that the Bill of Rights was sui generis, deserving a generous interpreta-
tion.'” In particular, Silke V.P. held,

the glass through which we view the interpretation of the Hong Kong Bill is a
glass provided by the Covenant [I.C.C.P.R.]. We are no longer guided by the
ordinary canons of construction of statutes nor with the dicta of the common
law inherent in our training. We must look, in our interpretation of the Hong
Kong Bill, at the aims of the Covenant and give “full recognition and effect” to
the statement which commences that Covenant. From this stems the entirely
new jurisprudential approach to which I have already referred.”‘

Although none of the judges explicitly recognized the “living tree” or “purposive”
approaches to interpretation, these approaches were nevertheless implicit in the spirit
of the decision. Perhaps the purposive approach was not explicitly mentioned or ap-
plied because there existed a rich body of jurisprudence from domestic and interna-
tional sources and it was not necessary to derive the meaning of the right in question
from fundamentals. In construing the right to be presumed innocent contained in arti-
cle 11(1), the three judges, particularly Silke V.P. and Kempster J.A., borrowed juris-
prudence primarily from the Canadian and American constitutional experience, and
from the European Convention for the Protection of Human Rights and Fundamental
Freedoms.”‘

In the course of its decision, the Court had some significant comments to make on
how to approach the limitation of rights under the Hong Kong system. The Court
explicitly rejected the two-step approach used in Canada, where the analysis of the
violated right and the justification of the violation (under section 1 of the Charter) is
kept analytically distinct.”‘ Section 1 guarantees the rights and freedoms in the Char-
ter “subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.” There is no corresponding provision in
Hong Kong’s Bill of Rights, and for this reason, the Court held that there must be an
implied justification test for the article 11(1) right. As for the substance of this test, the
Court was quite ready to accept the Canadian section 1 jurisprudence despite the fact
that a “free and democratic society” did not accurately describe Hong Kong at the
time. The Court held that a “free and democratic” society was the ultimate goal, and

42 Ibid. at 100.
141(1991) 1 H.KP.L.R. 88, [1992] 1 H.K.C.L.R. 127 [hereinafter Sin Yau-ming cited to H.KP.L.R.].
‘” Ibid at 106.
14Ibid at 107.
‘4 4 November 1950, Eur. T.S. 5, 213 U.N.T.S. 221 [hereinafter European Convention on Human

Rights].

“‘1 See Sin Yau-ming, supra note 143 at 108-109.

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

683

that it was necessary for the Crown to show that the limit was rational and propor-
tional to legitimate state interests.

Almost two years later, the first Bill of Rights case reached the Privy Council, and
Lord Woolf had an opportunity to confirm and modify some of the comments made
by the Court of Appeal. Again dealing with article 11(1), Hong Kong (A.G.) v. Lee
Kwong-kute approved the generous method of interpretation set down in Sin Yau-
ming. It went on to recognize the value of jurisprudence from other jurisdictions, but
warned against being bound by external decisions, especially when “the situation in
those jurisdictions may not necessarily be identical to that in Hong Kong.”‘ 9 On the
issue of limitation, Lord Woolf also spoke favourably of the approach taken by the
Court of Appeal in Sin Yau-ming, and examined, in addition to the Canadian jurispru-
dence, decisions from other jurisdictions. “[A]U of the many decisions in different ju-
risdictions,” he wrote, “… recognize that provisions similar to Article 11(1) are always
subject to implied limitations ….'” In delineating the proper implied limitation test to
be used in this case, Lord Woolf wanted to distance the Bill of Rights from the rigid
Canadian approach:

[lilt is their Lordships’ opinion that, in applying the Hong Kong Bill, it is not
necessary, at least in the vast majority of cases, to follow the some what [sic]
complex process now established in Canada in order to assess whether an ex-
ception to the general rule that the burden of proof should rest upon the prose-
cution throughout a trial is justified.’

He went on to describe a flexible approach: “the prosecution is required to prove the
important elements of the offence; while the defendant is reasonably given the burden
of establishing a provision or an exemption or the like …,..2 However, he thought the
Canadian section 1 framework could be used in borderline cases, but only for pur-
poses of guidance.

It is important to note that Lord Woolf qualifies his approach to limitation with
the words “provisions similar to article 11(1)”, which implies that he was thinking
strictly of articles that lack an express limitation clause. It will later be argued that the
right to vote in article 21 is not “similar to” article 11(1) –
it has an express
“unreasonable restriction” clause. Lord Woolf’s emphasis on having a flexible im-
plied-limitation test may therefore not be so apt with respect to the right to vote.

Insights from Jurisdictions with Constitutionally Entrenched Rights

Notwithstanding Lord Woolf’s warning in Lee Kwong-kut against being bound by
jurisprudence from outside Hong Kong, it is still useful to look at this jurisprudence,
if only for its methodology in arriving at the meaning and purposes of the right to
vote. The arena of dispute in both Canada and the United States has primarily been

“‘Supra note 128 [hereinafter Lee Kwong-kut].
” Ibid at 195.
at 196.
“Ibid
Ibid at 200.
Ibid

684

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the context of challenging electoral boundaries. The jurisprudence in these two coun-
tries is quite different, which can be explained by their dissimilar political histories
and manners of constitutional interpretation.

a. Canada

There are obvious differences in the textual expression of the right to vote be-
tween the Canadian and Hong Kong constitutions. In Canada, section 3 of the Char-
ter”‘ declares that “[e]very citizen of Canada has the right to vote in an election of
members of the House of Commons or of a legislative assembly and to be qualified
for membership therein.” The Canadian expression is much simpler than the one in
Hong Kong’s Bill of Rights. It will be argued that this noticeable difference should in-
fluence how much weight is accorded to the Canadian jurisprudence when construing
the right to vote in Hong Kong.

In Reference re Provincial Electoral Boundaries (Sask),”4 the Supreme Court of
Canada had its first opportunity to construe the core meaning of the right to vote in
the Charter. In giving her decision, McLachlin J. borrowed heavily from an earlier
decision of hers, Dixon v. British Columbia (A.G.), 5 decided while she was chief jus-
tice of the British Columbia Supreme Court. The issue in both cases was whether a
scheme of provincial electoral boundaries violated section 3 of the Charter because
the varying size of constituencies diluted the voting power of electors in certain con-
stituencies. Since section 3, on its face, made no reference to equal voting power,
McLachlin J. (for the majority) had to construe the meaning of the right to determine
if such a concept was included. Furthermore, the Court was asked to adopt the
American jurisprudence, which had found that near-absolute voter parity was pro-
tected by the U.S. Constitution.

In construing the right to vote in Canada, McLachlin J. adopted a comprehensive
approach. In a general statement of principle, she held that “[t]he content of a Charter
right is to be determined in a broad and purposive way, having regard to historical and
social context.”” 6 She went on to describe how the “living tree” approach should be
applied in this case:

The right to vote, while rooted in and hence to some extent defined by histori-
cal and existing practices, cannot be viewed as frozen by particular historical
anomalies. What must be sought is the broader philosophy underlying the his-
torical development of the right to vote –
a philosophy which is capable of
explaining the past and animating the future.”‘

‘3 Supra note 133.

(1991] 2 S.C.R. 158, (sub. nom. Reference re: Electoral Boundaries Commission Act, ss. 14, 20

59 D.L.R.(4th) 247 (S.C.) [hereinafter Dixon cited to B.C.L.R.].

“6 Electoral Boundaries Reference, supra note 154 at 179.
157 Ibid. at 181.

(Saslk)) 81 D.L.R.(4th) 16 [hereinafter Electoral Boundaries Reference cited to S.C.R.].

‘ (1989), 35 B.C.L.R. (2d) 273, (sub nom. Re Dixon and Attorney-General of British Columbia)

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

685

This passage is significant since it gives structure to historical analysis; history is only
important in so far as it discloses an underlying philosophy or purpose of the right.
There were two other considerations which affected McLachlin J.’s method of inter-
pretation. First, she applied a general principle that “practical considerations must be
borne in mind in constitutional interpretation.’ ‘.. Secondly, she confirmed that

[t]he Court must be guided by the values and principles essential to a free and
democratic society which … embody, to name but a few, respect for the inher-
ent dignity of the human person, commitment to social justice and equality, ac-
commodation of a wide variety of beliefs, respect for cultural and group iden-
tity, and faith in social and political institutions which enhance the participation
of individuals and groups in society.5

In applying this method of interpretation, McLachlin J. would not adopt the
American jurisprudence, principally because the Canadian history of democracy was
more evolutionary than in the United States. Instead, she held that “the philosophy
underlying the development of the right to vote in [Canada] is the broad goal of ef-
fective representation.””w In setting down the law, she recognized that effective repre-
sentation begins with absolute voter parity, but that deviations from this ideal would
be permissible on grounds of “practical impossibility or the provision of more effec-
tive representation.””‘ The latter could be effected where legislatures, when drawing
electoral boundaries, take into consideration factors such as geography, community
history, community interests and minority representation.

It would be a mistake to transplant blindly the result of this case onto Hong Kong
soil by suggesting that “effective representation” is the underlying interest of the right
to vote in Hong Kong. The purpose of this paper is to derive independently a meaning
for that right. Nevertheless, the method of analysis used by McLachlin J., it is sug-
gested, is impeccable and will be adopted in the analysis to follow. This analysis will
go to show that there are interests other than effective representation that more accu-
rately underlie the meaning of the right to vote under Hong Kong’s Bill of Rights.

b. United States

In a series of decisions by the United States Supreme Court on cases contesting
the apportionment of electoral districts,'” it has been consistently held that the U.S.
Constitution ensures absolute voter parity “as nearly as is practicable”. The text of the
U.S. Constitution is different from both the Hong Kong and Canadian texts since it
contains no explicit “right to vote”. Nevertheless, in the foundational case of Baker v.

[hereinafter Oakes].

158 Ibid.
. Ibid., citing Dickson C.J.C. in R. v. Oakes, [1986] 1 S.C.R. 103 at 136, 26 D.L.R. (4th) 200
“0 Electoral Boundaries Reference, ibid. at 187.
161 Ibid. at 185.
12 See Baker v. Carr, 369 U.S. 186 (1962); Wesberry v. Sanders, 376 U.S. 1 (1964); Kirkpatrick v.
Preisler, 394 U.S. 526 (1969); White v. Weiser, 412 U.S. 783 (1973); Karcher v. Daggett, 462 U.S.
725 (1983).

686

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Car1 ‘ the Supreme Court held that the issue of inequality of voting power was justi-
ciable under the Fourteenth Amendment, which provides for the equal protection of
the law. In subsequent cases, the Court began locating the right in a different part of
the Constitution. In Wesberry v. Sanders,'” it was held that the words “by the People
of the several States” in article I, 2″65 protects the people’s right to equality of repre-
sentation in the House of Representatives. In arriving at this construction, Mr. Justice
Black applied a narrow version of historical analysis by looking at the historical con-
text of the Constitution, and primarily at the intentions of the framers. In the course of
his decision, Black J. was particularly influenced by the “Great Compromise” struck
among the drafters of the Constitution. The compromise meant that the House of Rep-
resentatives would represent the “People” while the Senate would represent the
“States”. Since only one branch would represent the “People”, many drafters insisted
that this representation be fair and equal.

In the cases that followed Wesberry, the Supreme Court consistently applied its
ratio with little regard for changing social circumstances. Judges were unwilling to
read into the qualifier “as nearly as is practicable” any leeway for community or
group interests.” Even the slightest variation in constituency size would be struck
down.

In light of the differences in constitutional texts and the U.S. Supreme Court’s
very narrow approach to interpretation, the American experience is not very helpful in
either result or method for the project at hand. Applying the framers’ intention ap-
proach” would not be very useful in the context of Hong Kong’s Bill of Rights. The
“package nature” of the Bill of Rights leaves little room for speculating on the reasons
behind the text of particular articles. The Bill of Rights was an almost wholesale
adoption of the I.C.C.ER. While some conclusions may be drawn from omissions and
variations from the I.C.C.P.R., on the whole, the intentions behind individual articles
of the Bill of Rights are likely to be those behind the whole document. There is not the
luxury of intense and thoughtful debate about the precise wording of the Bill of Rights
that exists for the U.S. and Canadian constitutions.

63 ibid
‘” Supra note 162 [hereinafter Wesberry].
’65 Article I, 2 provides, inter alia:

The House of Representatives shall be composed of Members chosen every second
Year by the People of the several States, and the Electors in each State shall have the
Qualifications requisite for Electors of the most numerous Branch of the State
Legislature.

‘6 See e.g. Karcher v. Daggett, supra note 162 at 742-44.
,’ See generally L. Levy, Original Intent and the Framers’ Constitution (New York: MacMillan,

1988).

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

B. A Human Right

1. Significance of Status

The Bill of Rights has human-rights status by virtue of being implementing legis-
lation for an international human-rights treaty. The preamble of the B.O.R.O. clearly
states that its purpose is “to provide for the incorporation into the law of Hong Kong
of provisions of the International Covenant on Civil and Political Rights as applied to
Hong Kong.” Furthermore, section 2(3) provides that the interpretation and applica-
tion of the B.O.R.O. should take place in light of this fact. The legal implications of
“implementing legislation” was readily recognized by Silke VP. in Sin Yau-ming.
Citing a decision of Lord Diplock,'” Silke VP. held that

there exists a well established principle of common law relating to the con-
struction of statutes which are intended by the legislature to domesticate an in-
ternational treaty to which the state- here the United Kingdom in the name of
Hong Kong – is a party. The words of the statute should be interpreted by the
court as being intended to carry out the state’s international treaty obligations
and not in any manner inconsistent therewith …'”

The significance of recognizing that article 21 has a human-rights status lies in
the consequent acceptance of international human-rights law for interpretation pur-
poses. It becomes permissible to look to the various human-rights systems to see how
they have interpreted the right to vote, and the limitations thereon. Human-rights in-
struments are multilateral treaties, which are interpreted according to the rules of the
Vienna Convention on the Law of Treaties.’70 Article 31 of the Vienna Convention
provides that a treaty is to be interpreted in accordance with the ordinary meaning of
its terms in the context of the treaty and in the light of its object and purpose. Both the
European and United Nations systems have already adopted broad purposive methods
of interpreting rights.”‘

Insights from International Human-Rights Law

In Sin Yau-ming, a warning was issued against too readily adopting international
jurisprudence because of an important difference between the role of domestic courts
and international tribunals in their application of law to protect human rights.” The
decisions of international bodies are often influenced by the concept of “margin of

‘6’ Garland v. British Rail Engineering Ltd, [1983] 2 A.C. 751 at 771 (H.L.).
9 Sin Yau-ming, supra note 143 at 105.
.7 23 May 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention].
,’ For a discussion of interpreting rights under the European system, see LG. Merrills, The Devel-
opment of International Law by the European Court of Human Rights, 2d ed. (Manchester: Manches-
ter University Press, 1993) c. 4. For a comment on the United Nations system in the context of Hong
Kong, see M. Nowak, “Interpreting the Hong Kong Bill of Rights: Techniques and Principles” in J.
Chan & Y. Ghai, eds., The Hong Kong Bill of Rights: A Comparative Approach (Hong Kong: Butter-
worths, 1993) 143.

‘ See Sin Yau-ming, supra note 143 at 108.

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appreciation”, which is a form of deference to the unique customs of individual States
in their methods of implementing human rights.7′ Although the margin of apprecia-
tion has no role in domestic law, it would be premature to dismiss international hu-
man-rights law because of this phenomenon. Rather, since there is no need to defer to
the political compromises that go into the formation of a treaty, the level of review of
a domestic court should be at least as strict as that of the international tribunal. Hence,
the margin of appreciation is not a barrier to the use of international jurisprudence, but
a benchmark.

International Covenant on Civil and Political Rights

The only significant difference between the text of article 21 of the Bill of Rights
and article 25 of the I.C.C.P.R. is that the former begins with “[e]very permanent resi-
dent” while the latter with “[e]very citizen”. A large percentage of Hong Kong people
would have been excluded from the benefit of the right had the word “citizen” been
retained. In fact, it is not entirely clear whether there even is such a thing as a “Hong
Kong citizen”. The Basic Law refers only to permanent and non-permanent resi-
dents.’7′ In any event, the similarity of the texts will mean that the experience of the
I.C.C.P.R. system will be especially influential on Hong Kong, and even more so than
the European system, whose provision is less strongly worded.’ 3

Article 25 guarantees both the right and the opportunity to take part in the con-
duct of public affairs. Manfred Nowak and the Human Rights Committee have noted
that to guarantee “opportunity” requires States to assume positive obligations to en-
sure that the rights in article 25 are realized in fact.”‘

Just as domestic courts might look to the intentions of “framers” to construe the
meaning of a constitution, international tribunals consult the preparatory work of
treaties, or travaux priparatoires. Under the Vienna Convention, the travaux can only
be used to confirm a derived meaning of the treaty, or to determine a meaning when
the derived meaning is ambiguous, obscure or manifestly absurd or unreasonable.'”
Part of article 25’s history illuminates the intention behind the clause “universal and
equal suffrage” found in sub-article (b). A number of members of the Commission on
Human Rights expressed the opinion that this clause was redundant and should not
have been included in the article since a non-discrimination clause already figured at

,71 See Merrills, supra note 171, c. 7.
, See Basic Law, supra note 4, art. 24.
, See text below, accompanying note 185.
176 See M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Strasbourg:
N.E Engel, 1993) at 439-40. Ibid. at 440, Nowak mentions two Human Rights Committee cases
which recognize this point (Awneeruddy – Cziffra and other Mauritian women v. Mauritius (No.
35/1978) in Selected Decisions of the Human Rights Committee under the Optional Protocol (2d-16th
Sess.) (New York, 1985) at 67 (UN Doc. CCPR/C/OP/l, Sales No. E.84.XIV.2) [hereinafter HRC
Decisions 1985]; and C.E et al. v. Canada (No. 113/1981) in Selected Decisions of the Human Rights
Committee under the Optional Protocol (17th-32d Sess.), vol. 2 (New York, 1990) at 13 (UN Doc.
CCPR/C/OP/2, Sales No. E.89.XIV.1)).

‘ See Vienna Convention, supra note 170, art. 32.

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

689

the beginning of the article.’78 However, the majority view was that the principle of
“universal and equal suffrage” was so fundamental that it had to be included. “This
provision, it was thought, would leave States parties to the covenant free to regulate
their own electoral systems, provided each vote carried equal weight.”” More re-
cently, the United Nations Human Rights Committee adopted a “General Comment”
on article 25,” wherein an elaboration of “universal and equal suffrage” is contained:

Although the Covenant does not impose any particular electoral system, any
system operating in a State party must be compatible with the rights protected
by article 25 and must guarantee and give effect to the free expression of the
will of the electors. The principle of one person, one vote must apply, and
within the framework of each State’s electoral system, the vote of one elector
should be equal to the vote of another. The drawing of electoral boundaries and
the method of allocating votes should not distort the distribution of voters or
discriminate against any group and should not exclude or restrict unreasonably
the right of citizens to choose their representatives freely.’

One final element of the United Nations experience valuable to Hong Kong is
how the Human Rights Committee has interpreted the “without unreasonable restric-
tion” limitation in the opening clause of article 25. In six individual communications
against Uruguay,”
the Human Rights Committee had an opportunity to define a test
for “unreasonable restriction”. The issue in these cases was whether a law that de-
prived certain members of Marxist political parties of all political rights for a period
of fifteen years violated article 25. In finding for a violation, the Committee applied a
principle of proportionality (are the restrictions proportionate responses
to the
achievement of some legitimate objective), and held that the limitation was unreason-
able.'” Nowak has also noted that the “reasonableness” of the limitation may depend
on the political context of the country in question:

whether specific restrictions on various political rights are reasonable may only
be evaluated on a case-by-case basis by drawing on the principle of propor-

178 See generally UN ESCOR Comm. H.R., 9th Sess., 363d Mtg., UN Doc. E/CN.4/SR.363 (1953)
at 12-13; 364th Mtg., UN Doe. E/CN.4/SR.364 (1953) at 13; 365th Mtg., UN Doe. E/CN.4/SR.365
(1953) at 7, 15, 18; 366th Mtg., UN Doe. EICN.4/SR.366 (1953) at 5; 367th Mtg., UN Doc.
E/CN.4/SR.367 (1953) at 13-15; see generally M.J. Bossuyt, Guide to the “Travaux Prfparatoires” of
the International Covenant on Civil and Political Rights (Dordrecht: Martinus Nijhoff, 1987) at 474-
75.

‘” Bossuyt, ibid.
” General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of
the International Covenant on Civil and Political Rights, 57th Sess., 15 10th Mtg. (12 July 1996), Ad-
dendum: “General Comment No. 25 (57)”, UN Doe. CCPR/C/21/Rev.l/Add.7 (1996) [hereinafter
“General Comment No. 25”].

“‘ Ibid. at para. 21.
. Ramirez v. Uruguay (No. 4/1977) in HRC Decisions 1985, supra note 176 at 3, 4; Altesor v.
Uruguay (No. 10/1977) in ibid. at 105; Weisz v. Uruguay (No. 28/1978) in ibid. at 57; Touron v. Uru-
guay (No. 32/1978) in ibid. at 61; Silva et aL v. Uruguay (No. 34/1978) in ibid. at 65; Pietraroia v.
Uruguay (No. 44/1979) in ibid. at 76.

.. See Pietraroia v. Uruguay, ibid. at para. 16.

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tionality and taking into account the overall political situation of the State con-
cerned.’8

b. European Convention on Human Rights

Based only on the respective wording of the right to vote, it appears that the
than the

European Convention on Human Rights provides weaker protection
I.C.C.P.R. The relevant provision is article 3 of Protocol No. 1:

The High Contracting Parties undertake to hold free elections at reasonable in-
tervals by secret ballot, under conditions which will ensure the free expression
of the opinion of the people in the choice of the legislature.,

For a number of years, there was much doubt as to whether this section guaranteed
any individual rights, such as the right to vote and to run for election. In 1976, the
European Commission on Human Rights finally confirmed that it did.” The issue
then was whether the article protected equality in the exercise of those rights. There
was thus a tendency to argue violations of article 3 of Protocol No. 1 along with arti-
cle 14, which provides that rights are to be secured without discrimination on a num-
ber of grounds.'”

In the Mathieu-Mohin and Clerfayt Case,” the European Court of Human Rights
had its first opportunity to delineate the parameters of article 3 of Protocol No. 1. The
Court confirmed the Commission’s generous interpretation of the article, adopting the
latter’s decisions that held that the article protected an individual right to vote and a
right to stand for election to the legislature.'” The Court held that the article also im-
plied “the principle of equality of treatment of all citizens in the exercise of their right
to vote and their right to stand for election.”‘” However, it was not prepared to say
that all votes must necessarily have equal weight. Despite a generous approach, the
decision was clearly tempered by its “margin of appreciation”. In particular, the Court
stated that

[flor the purposes of Article 3 of Protocol No. 1, any electoral system must be
assessed in the light of the political evolution of the country concerned; fea-
tures that would be unacceptable in the context of one system may accordingly
be justified in the context of another at least so long as the chosen system pro-
vides for conditions which will ensure the “free expression of the opinion of
the people in the choice of the legislature”.’

,u Nowak, supra note 176 at 455.
” Protocol to the [European] Convention for the Protection of Human Rights and Fundamental

Freedoms, 20 March 1952, Eur. T.S. 9, art. 3 [hereinafter Protocol No. 1].

’86 W, X, YandZ v. Belgium (Nos. 6745 & 674674) (1975), 2 Eur. Comm. H.R. D.R. 110 at 116, 18

YB. Eur. Cony. H.R. 236 at 244.

7 See The Liberal Party v. United Kingdom (No. 8765/79) (1980), 21 Eur. Comm. H.R. D.R. 211.
”
1 (1987), Eur. Ct. H.R. Ser. A, No. 113, 30 Y.B. Eur. Cony. H.R. 114, (sub. nom. Mathieu-Mohin

and Clerfayt v. Belgium) 10 E.H.R.R. 1 [hereinafter Mathieu-Mohin cited to Eur. Ct. H.R. Ser. A].

’89 See ibid at para. 51.
’90 Ibid at para. 54.
191 Ibid.

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On the issue of restrictions, the Court held that the rights contained in article 3 were
subject to implied limitations.” Although it was recognized that States would have a
“wide margin of appreciation” in this area, the Court still insisted on a structured
method to deal with limitations:

[Ilt is for the Court to determine in the last resort whether the requirements of
Protocol No. 1 have been complied with; it has to satisfy itself that the condi-
tions do not curtail the rights in question to such an extent as to impair their
very essence and deprive them of their effectiveness; that they are imposed in
pursuit of a legitimate aim; and that the means employed are not dispropor-
tionate.”

It would be inappropriate for Hong Kong to follow strictly the European jurispru-
dence, given the great differences between the two systems in the textual expression
of the right to vote and the latter’s reliance on the margin of appreciation. But the fact
that even the deferential European and U.N. systems insist on a demonstration of
“legitimate. aim” and “proportionality” before allowing a limitation on the right to
vote is instructive for Hong Kong.

C. Text and Context of the Bill of Rights
The next step in deriving the meaning of the right to vote is to read closely the
words of article 21, by themselves first, and then in the context of the whole ordi-
nance. In performing this exercise one is trying to achieve two objectives. First, the
text of article 21 can be a fertile source for deriving the purpose of the right that is
being protected. Second, it is necessary to construe the words of article 21 according
to their plain and ordinary meaning, ensuring that similar words have a consistent
meaning throughout the ordinance and that all words and clauses are given some
meaning. However, purposive interpretation generally requires that the plain and or-
dinary meaning of words conforms to the purpose of the right. In most cases, con-
formity is achieved by exploiting the inherent ambiguity of words. But where a clear
inconsistency between the ordinary meaning of the words and the purpose of the right
exists, as is the case with a reservation, it is necessary to give effect to the ordinary
meaning.

Article 21 consists of an opening clause followed by three distinct entitlements:

Every permanent resident shall have the right and the opportunity, without
any of the distinctions mentioned in article 1(1) and without unreasonable re-
strictions –

,9, See ibid. at para. 52.
1 Ibid

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The opening clause grants the rights to “permanent residents”, which is a narrower
category than “everyone” or “all persons”, used in the other articles of the Bill of
Rights. Permanent residency is a well-defined term in Hong Kong law. It would not
be contrary to the purpose of the entitlements to apply the definition given in the Im-
migration Ordinance, as was done in Lau San-ching.'”‘ As already mentioned, the
significance of guaranteeing both the right and the opportunity to vote means that the
Government has positive obligations to facilitate the exercise of the rights contained
in article 21.9 Not only must the State guarantee the rights on paper but also in the
actual conduct of elections. Any form of systemic discrimination, such as polling sta-
tions consistently inaccessible to disabled individuals, would likely violate article 21.
The opening clause concludes with an explicit limitations clause which applies to
all the entitlements. There are two hurdles that all potential limitations must overcome
in order to be valid. First, they cannot be based on the distinctions mentioned in arti-
cle 1(1), which include “race, colour, sex, language, religion, political or other opin-
ion, national or social origin, property, birth or other status.”” Second, they cannot be
“unreasonable restrictions”. This inherently ambiguous formulation must be inter-
preted in the context of the entire ordinance and with the help of experience from
other jurisdictions.

“4 See supra note 122 at 48, where the Court recites the Immigration Ordinance (supra note 43)

definition of “permanent resident”:

1. Any person who is wholly or partly of Chinese race and has at any time been or-
dinarily resident in Hong Kong for a continuous period of not less than seven
years.

2. Any person who is a British Dependent Territories citizen and who –

(a) belongs to a class or description of persons specified in [article] 2 of the Hong
Kong (British Nationality) Order 1986 (L.N. 233/1986) as having a connection
with Hong Kong; or
is such a citizen by virtue of his having a connection with any of the British De-
pendent Territories (other than Hong Kong) mentioned in [Schedule] 6 to the
British Nationality Act 1981 [(U.K.), 1981, c. 61] and has at any time been
married to a person specified in subparagraph (a).

(b)

3. Any person who is a Commonwealth citizen and who immediately before 1 Janu-
ary 1983 had the right to land in Hong Kong by virtue of [section] 8(1)(a) as then
in force.

See Nowak, supra note 176 at 439-40.

‘9’ Many writers on the I.C.C.P.R.’s equivalent have noted that it is somewhat redundant to repeat
this first hurdle, since articles 2 and 3 of the I.C.C.PR. should be sufficient (see e.g. Nowak, supra
note 176 at 456-57; Bossuyt, supra note 178 at 474; K.J. Partsch, “Freedom of Conscience and Ex-
pression, and Political Freedoms” in L. Henkin, ed., The International Bill of Rights: The Covenant
on Civil and Political Rights (New York: Columbia University Press, 1981) 209 at 238). An explana-
tion for its inclusion is that it goes to emphasize the importance of non-discrimination in the context
of political rights.

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693

The wording and structure of limitations on rights vary from jurisdiction to juris-
diction. As was recognized in both Sin Yau-ming and Lee Kwong-kut, Hong Kong’s
Bill of Rights, where each article has its own individually expressed or implied limita-
tion, is structurally different from the Canadian Charter, with its single overarching
limitation clause. Despite this difference, it would be wrong to ignore in all respects
the Canadian approach, or to adopt blindly the flexible approach in Lee Kwong-kut.
For a number of reasons, in interpreting the limitations clause in article 21, it is much
more appropriate to adopt the more structured Canadian test than the flexible ap-
proach described by the Privy Council. The most compelling reason is that Lee
Kwong-kut was dealing with a completely different right (article 11(1)), which has no
express limitation clause. Indeed, Lord Woolf seemed to qualify the reach of his
comments to “provisions similar to Article 11(1).”‘. Article 21 is not similar to article
11(1) since it expressly prohibits “unreasonable restrictions”. In fact, article 21 is the
only article in the Bill of Rights that contains a limitation expressed in those terms,
which mus.t be given meaning. Even under the European system, where the expres-
sion of the right to vote is sparse and contains no express limitation, the European
Court of Human Rights, in Mathieu-Mohin, required the State to prove that the limi-
tations are “in pursuit of a legitimate aim … and that the means employed are not dis-
proportionate.’ ‘.8 Similarly, the U.N. Human Rights Committee has interpreted the
words “unreasonable restriction” to include a proportionality test. Although Nowak
has cautioned that what is “reasonable” must depend on a country’s political context,
in the case of Hong Kong, the political and historical context militates for a rigorous
limitation test. Although not as precise as the Canadian section 1 test, an acceptable
approach to understanding “unreasonable restriction” is to ask

(a) What objectives … are to be achieved [by the restrictions] (legitimate ob-

jectives);

(b) Whether there is a rational connection between the objectives to be

achieved and the means or restrictions employed (rationality test); and

the legitimate objectives (proportionality test).'”

The three entitlements listed after the opening clause appear to relate to distinct
interests, but they all have their origins in the purpose of promoting self-government.
Article 21(a) captures the essence of self-government: Hong Kong permanent resi-
dents shall have the right and the opportunity to participate in the conduct of Hong
Kong public affairs. It does not specify the mode of participation, but there are only
two options: “directly”, viz. by referenda, or “through freely chosen representatives”,
viz. by elections.” Taking part in the “conduct of public affairs” is more general than

” Lee Kwong-kut, supra note 128 at 196.
..8 Supra note 188 at para. 52.
‘”Lau Sau-ching, supra note 122 at 50.
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taking part in government; nevertheless, it implies a minimum standard of effective
political participation in relation to important affairs affecting the territory.”0′

Article 21(b) elaborates on the content of this minimum standard by giving all
permanent residents the right to vote and to be candidates in genuine periodic elec-
tions. These elections must comply with four “fairness principles”: universal suffrage,
equal suffrage, secret ballot, and free elections.’ These dictates of fairness are consis-
tent with the values enshrined in the preamble of the I.C.C.P.R. They also resonate in
the new political and social culture that Hong Kong had become accustomed to under
British rule. The principles of “secret ballot” and “free elections” are fundamental to
self-government, drawing a distinct and much needed line between resident participa-
tion and State interference. 3

As was mentioned earlier, the drafters of the I.C.C.P.R. considered removing from
article 25 the words “universal and equal suffrage”, but the majority prevailed, insist-
ing on their fundamental importance. “Universal suffrage” emphasizes that the right
should be enjoyed by everyone without discrimination. If some are to be denied the
right then the State must justify the restriction as being reasonable. “Equal suffrage”
means that everyone’s vote should carry the same weight. As has every other juris-
diction that has struggled with the meaning of this concept, Hong Kong must deal
with the question: Does “equal suffrage” mean absolute equality? In thinking about
this question, it is important to note that unlike the Canadian, American or European
human-rights regimes, the right to vote in Hong Kong is expressly qualified by those
“equal suffrage”. Furthermore, the word “equal” in article 21(b) is unquali-
words –

Paragraph 5 of “General Comment No. 25”, supra note 180, states:

The conduct of public affairs, referred to in paragraph (a), is a broad concept which
relates to the exercise of political power, in particular the exercise of legislative, execu-
tive and administrative powers. It covers all aspects of public administration, and the
formulation and implementation of policy at international, national, regional and local
levels. The allocation of powers and the means by which individual citizens exercise
the right to participate in the conduct of public affairs protected by article 25 should be
established by the constitution and other laws.

2’0 See Nowak, supra note 176 at 444, who describes them as “voting principles”.
2 3 “General Comment No. 25”, supra note 180 at paras. 19-20, discusses these two fairness princi-

ples in these terms:

Persons entitled to vote must be free to vote for any candidate for election and for or
against any proposal submitted to referendum or plebiscite, and free to support or to
oppose government, without undue influence or coercion of any kind which may dis-
tort or inhibit the free expression of the elector’s will. Voters should be able to form
opinions independently, free of violence or threat of violence, compulsion, inducement
or manipulative interference of any kind….
States should take measures to guarantee the requirement of the secrecy of the vote
during elections including absentee voting, where such system exists. This implies that
voters should be protected from any form of coercion or compulsion to disclose how
they intend to vote or how they voted, and from any unlawful or arbitrary interference
with the voting process. Waiver of these rights is incompatible with article 25 of the
Covenant.

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695

fled (in article 21(c), in contrast, access to public service is guaranteed only on
“general terms of equality”). These two points together with the emphasis on non-
discrimination in the opening of article 21 suggest that a high degree of equality
should characterize voting power in Hong Kong. Absolute equality should therefore
be the starting point, and, as will be elaborated in the next part, only those deviations
that further the project of self-government or the entrenchment of fundamental human
rights should lie within the parameters of article 21(b).

For example, in drawing a geographical or functional constituency, it should be
permissible to depart from equal-size constituencies in order to give a voice to minor-
ity groups that have been poorly represented in the past. The grounds of distinction
mentioned in article 1(1) of the Bill of Rights suggest which groups may be the most
vulnerable and deserving of greater relative voting power. Achieving true equality
between vulnerable minority groups and powerful business groups may require that
the former receive greater political representation to compensate for their lack of eco-
nomic power. In view of China’s current honeymoon with the conservative business
community in Hong Kong, economic power and affluence seem to be the shield
against likely reprisals from China; for those outside that community, it is very impor-
tant to provide at least some protection in the form of political representation.”‘

Article 21(c) guarantees equal opportunity within Hong Kong’s civil service. This
right has special relevance in Hong Kong, where historically many of the top posts in
the civil service were taken by expatriates.”5 Ensuring that Hong Kong people manage
all the organs of government is a necessary step in achieving self-government in
Hong Kong.’

Finally, an understanding of article 21 would not be complete without discussing
the meaning and effect of the reservation in section 13 of the B.O.R.O.: “Article 21

This understanding of the right to vote is not too far from what was proposed by the 1992 Legis-
lative Council Select Committee on democratic reform. In discussing the creation of new functional
constituencies, it was suggested that accommodations should be made for “special interest groups,
like the disabled and handicapped, who believe they might be better represented if they are them-
selves designated as functional constituencies” (Select Committee Report, supra note 66 at 30).

2 5 Mners writes:

The slowest growth in the proportion of Chinese has been in the directorate class
(Heads of departments and deputy .heads, senior professional officers, and those of
similar status) … This is the result of the relatively low intake of Chinese in the 1950s,
especially into the administrative grade [the elite of the public service] from which
many of the top posts are filled. Between 1947 and 1960 only seven Chinese were ap-
pointed as administrative officers, compared to 41 expatriates (The Government and
Politics of Hong Kong, supra note 10 at 94).

… Paragraph 23 of “General Comment No. 25″, supra note 180, specifies that

[b]asing access to public service on equal opportunity and general principles of merit,
and providing secure tenure, ensure that persons holding public service positions are
free from political interference or pressures.

For recent judicial interpretation of Art. 21(c), see R. v. Hong Kong (Secretary for the Civil Service
and A.G.), exparte The Association of Expatriate Civil Servants of Hong Kong, (1995) 5 H.K.P.L.R.
490 (H.C.), where the Government’s localization scheme for civil servants was challenged.

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does note require the establishment of an elected Executive or Legislative Council in
Hong Kong.” When the Government of the United Kingdom ratified the I.C.C.P.R.,
“[it reserved] the right not to apply sub-paragraph (b) of Art. 25 in so far as it may re-
quire the establishment of an elected Executive or Legislative Council in Hong
Kong ….”. The reservation in the B.O.R.O. is somewhat broader, reserving against all
of article 21. But significantly, article 21’s application is similarly excluded only to
the extent that it requires an elected Executive or Legislative Council. In Lee Miu-
ling, Keith J. of the High Court held that section 13 cannot be used to justify the dis-
parities in voting power caused by the functional constituencies. Essentially, he held
that the reservation was only applicable where either the Legislative or Executive
Council still lacked any elected element. It was most meaningful at the time of ratifi-
cation of the I.C.C.P.R. in 1976, when neither body had any elected members; it con-
tinued to have meaning for the Executive Council, which was still unelected. But with
respect to elections to the Legislative Council,

[s]ince the Letters Patent now require the establishment of an elected Legisla-
tive Council, [section] 13 of the Bill of Rights Ordinance is, to the extent that it
relates to the Legislative Council, a dead letter until such time as the Letters
Patent are amended to remove the requirement for the elected Legislative
Council. That is why [section 13] cannot now be used to justify a departure
from the rights guaranteed by [article] 21 of the Bill of Rights.03

Keith J. limited the scope of section 13 without doing injustice to its plain meaning. A
strict interpretation was necessary in order to avoid nullifying the meaning of the
rights in article 21. His decision was consistent with the treatment of reservation
clauses in international law.’ Article 19(c) of the Vienna Convention20 declares that
“[a] State may … formulate a reservation unless … the reservation is incompatible
with the object and purpose of the treaty.” Arguably, a reservation that nullified the
meaning of the right to vote would be incompatible with the object and purpose of
Hong Kong’s Bill of Rights.

III. Purposes Underlying the Right to Vote in Hong Kong

Having established the significance of the constitutional and human-rights status
of the right to vote, and the prima facie meaning of its expression in the B.O.R.O., it
is time to consider how the meaning of the right is informed by the unique circum-
stances of Hong Kong. Following the Canadian approach, a purposive interpretation
requires a search through the historical, social and political context of Hong Kong for

,o7Bymes & Chan, eds., supra note 12 at 262. See also supra note 120.
.. Lee Miu-ling, supra note 123 at 197-98.
‘ This opinion is also consistent with the views of the Human Rights Committee. In its concluding
observations on the last report of the United Kingdom relating to Hong Kong under the I.C.C.P.R., the
Committee held that notwithstanding the U.K.’s reservation, “once an elected Legislative Council is
established, its election must conform to article 25 of the Covenant” (UN GAOR, 51st Sess., Supp.
No. 40, UN Doc. A/51/40 (1995) para. 65, partially reprinted in (1996) 17 HRLJ 469-471 [hereinafter
HRC Observations]).
“‘ Supra note 170.

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697

the philosophical truths behind the right to vote. What are the interests protected by
the right that are reflected in its past and should continue to inform its future? A close
reading of Hong Kong’s history reveals two distinct interests that underlie the right to
vote: (a) the protection of all other human rights, and (b) the promotion of self-
govemment. How these interests come about and how they have been manifested in
actual events will be discussed below.

A. Protection of All Other Human Rights
The right to vote serves the functional purpose of protecting and preserving all
other human rights. One commentator on the I.C.C.P.R. has stated this notion in these
terms:

[O]nly where there is authentic popular sovereignty can the individual hope to
enjoy the other rights enshrined in the Covenant as well as the economic, so-
cial, and cultural rights guaranteed in the other Covenant.!’

In Dixon v. British Columbia (A.G.), McLachlin J. (she was then chief justice of the
British Columbia Supreme Court) acknowledged this paramount function of the right
to vote in the context of section 3 of the Canadian Charter:

mhe right to vote and participate in the democratic election of one’s govern-
ment is one of the most fundamental of the Charter rights. For without the right
to vote in free and fair elections all other rights would be in jeopardy. The
Charter reflects this. Section 3 cannot be overridden under s. 33(1); it is, in this
sense, a preferred right.212

As noted by McLachlin J., the right to vote is different from most other rights in the
Charter in that it is not subject to the “notwithstanding” clause, which permits pro-
vincial and federal governments to expressly override protected rights.2

The historical context of the B.O.R.O. and Hong Kong’s system of representative
government reveal that this human-rights purpose underlies the right to vote in Hong
Kong. The enactment of Hong Kong’s Bill of Rights was not an isolated act of be-
nevolence from London, especially since England herself does not have a written
human-rights instrument. As was described earlier, the Bill of Rights was motivated
by the realization that Hong Kong was to be handed over to the intolerant and power-
ful sovereign authority responsible for the unmistakable horrors of the 1989 Beijing
massacre. Article 21, together with the other rights in the Bill, were meant to entrench
a system and culture of human rights in Hong Kong prior to 1997 in the hope that
these rights would be more difficult to take away under Chinese sovereignty.

21 Partsch, supra note 196 at 244.
212 Dixon, supra note 155 at 284 [references omitted].
211 Section 33(1) of the Charter, supra note 133, provides that “Parliament or the legislature of a
province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that
the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sec-
tions 7 to 15 of this Charter.”

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One might be tempted to argue that the right to vote is not essential to the preser-
vation of other rights because, for a number of decades, Hong Kong’s civil liberties
were fairly well protected without democratic rights. However, this reply is mislead-
ing. Prior to 1991, the civil liberties in Hong Kong were indirectly linked to the
democratic rights and traditions of England. Human-rights violations in Hong Kong,
perpetrated by the Hong Kong authorities, would certainly have had negative political
repercussions on the administration back in England. Hence, it is incorrect to believe
that the history of civil liberties in Hong Kong would have been possible without
democratic vigilance. Now that Hong Kong has reverted back to China, where
“democratic supervision” takes on the inverted meaning of the State “supervising”
pro-democrats, the continued protection of human rights in Hong Kong is all the more
pressing. And article 21 is central to ensuring that human rights will not be easily
overriden by either Hong Kong or Chinese state actors.

The results from the 1991 and 1995 Legislative Council direct elections provide
evidence of how the right to vote in practice is linked to the protection of human
rights. In both elections, an overwhelming majority of the seats was taken by mem-
bers of the Democratic Party and other democratically-minded independent mem-
bers.” These so-called “liberal” legislators adamantly used the tools of their trade
(e.g., question period, motions, private member’s bills, amendments, etc.) to question
the administration about the current and future state of human rights.’ They also ini-
tiated their own legislative programme to protect rights using the more restrictive ve-
hicle of private bills. The 1995 election results confirmed the public’s approval of

2,, In the 1991 elections, of the 18 directly elected seats, 12 were won by members of the United
Democrats of Hong Kong, the predecessor to the Democratic Party, led by barrister Martin Lee. Three
more seats were occupied by members of Meeting Point, another pro-democracy party that would
later join with the United Democrats to form the Democratic Party on 2 October 1994. One other
member worth mentioning is independent member Emily Lau, an extremely outspoken critic of the
Government, who would later go on to acquire the title of “most popular legislator” in the 1995 elec-
tions. With two more United Democrats in the functional constituencies, and two appointed members,
who generally identified with this “liberal camp”, the liberals could have, on average, a voice of 20
votes, which was clearly insufficient for a majority on any reading or motion (see generally appendix
A of R.YF. Kwok, J.YH. Leung & I. Scott, eds., Votes Without Power: The Hong Kong Legislative
Council Elections 1991 (Hong Kong: Hong Kong University Press, 1992) [hereinafter Votes Without
Power]; see also C. Chan, “Emily hits top of popularity parade”, South China Morning Post (19 Sep-
tember 1995) 3).

In the September 1995 Legislative Council elections, voters re-affirmed their support for the
Democratic Party, which won a total of 19 seats, two more than in 1991. Allies of the Democrats, in-
cluding members from the Confederation of Trade Unions, the Association for Democracy and Peo-
ple’s Livelihood, and independent members such as Emily Lau and Christine Loh, accounted for an-
other eight seats. As in 1991, overwhelming support for these liberal candidates came primarily from
the direct elections (see generally WK. Fung & L. Wong, “Democrats dominate LegCo” South China
Morning Post (19 September 1995) 1).
225 See Debates of the Hong Kong Legislative Council (6 November 1991) at 386-87 (E. Lau, “Bill
of Rights Ordinance’s bearing on law enforcement”); Debates of the Hong Kong Legislative Council
(8 July 1992) at 4031-32 (C. Lam, “Bill of Rights Ordinance’s bearing on the Public Order and
Summary Offences Ordinances”); Debates of the Hong Kong Legislative Council (8 July 1992) at
4006-10 (J. To, “Publicity activities on the Hong Kong Bill of Rights Ordinance”).

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

what the Democrats and the other liberal legislators had done, and provided the man-
date for them to continue their human-rights work.

What are the legal ramifications of recognizing this purpose for the right to vote?
First, article 21 and section 13 should not be interpreted in a way that is inconsistent
with the other human rights protected in the I.C.C.P.R. The standard of the I.C.C.P.R.
is chosen over that of the B.O.R.O. because the purpose underlying the right is the
protection of human rights in general, without reference to any particular country’s
conception of human rights. The I.C.C.P.R. approximates a universal expression of
human rights and is therefore the appropriate standard. Second, when there is any
ambiguity in the interpretation of article 21 or section 13, the interpretation that tends
to enhance human rights should be adopted.”‘

B. Achievement of Self-Government

The principle of self-determination is a norm in international law that has come to
be closely identified with the post-war independence of many African states.”‘ How-
ever, independence is only one possible outcome of exercising the right:

The right of self-determination is the right of peoples to freely determine their
political status. It comprises both their international status and their domestic
political status, sometimes known as external self-determination and internal
self-determination. External self-determination
is the right of peoples to
choose, free from foreign interference, their status within the international
community. Such status may be that of a sovereign independent state; free as-
sociation with an independent state; integration with an independent state; or
emergence into any other political status. Internal self-determination is the right
of peoples to choose freely the form of government under which they wish to
live. This, of course, is a continuing right … 21

1. External Right of Self-Determination: Missed Opportunities

Commentators have remarked on the peculiarity of Hong Kong’s process of de-
colonization in relation to Britain’s other dependent territories. It has been written that

2,6 1 have restricted the application of these principles to only civil and political rights not because
social, economic and cultural rights are not a protected interest of the right to vote but rather because
of the controversy over whether they in fact are “human rights” in the same sense as we think of
“civil and political rights”. They are often perceived to be in tension with civil and political rights, and
given their imprecise definitions, to include them would add confusion to these interpretive principles
(see generally IC Vasak, “Les diffdrentes cat6gories des Droits de l’Homme” in A. Lapeyre, E de
Tinguy & K. Vasak, eds., Les Dimensions Universelles des Droits de I’Homme, vol. 1 (Bruxelles:
Bruyant, 1990) 297, cited in S. Toope, “Cultural Diversity and Human Rights (F.R. Scott Lecture)”
(1997) 42 McGiU L.J. 169 at 179 n. 28).
217 See e.g. E.A. EI-Obaid & K. Appiagyei-Atua, “Human Rights in Africa-ANew Perspective on
Linking the Past to the Present” (1996) 41 McGill L.J. 819, especially at 824 and 838ff.

1 N. Jayawickrama, “The Right of Self-Determination” in P Wesley-Smith, ed., Hong Kong’s Ba-
sic Law: Problems and Prospects (Hong Kong: Faculty of Law, University of Hong Kong, 1990)
(Proceedings of a seminar held at the University of Hong Kong on 5 May 1990) 85 at 86.

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[the decolonisation of Hong Kong will be totally different from the normal
post-war pattern, and will more closely resemble the transfers of territory with-
out the consent of the inhabitants which took place between the imperial pow-
ers in the nineteenth century. 9

Unlike other British colonies, Hong Kong has never been given the chance to exercise
the external right of self-determination. Although Hong Kong was on the agenda of
the United Nations Special Committee on Decolonization in 1961, it was later taken
off a list of colonial territories contained in the United Nations Declaration on the
Granting of Independence to Colonial Territories and Peoples.”2′ The move was initi-
ated by China, and Britain did not protest at the time.

Despite Hong Kong’s removal from the list in 1972, many commentators still ar-
gue that Hong Kong is entitled to the right of self-determination.22′ In its report, the
International Commission of Jurists (“I.C.J.”) stated that recognition of this right
would have required “the British Government [to obtain] the authority of a referen-
dum conducted by the Hong Kong Government before entering into the negotiations
which led up to the Joint Declaration.”” This, of course, was not done. At the strict
request of China, the people of Hong Kong were shut out from the negotiations, and
only after a draft text had been initialled by both sides did the British seek public ac-
ceptance of the document. Although the consultations were extensive and in the end
favourable, the I.C.J. noted that they were inadequate to fulfill the requirements of the
right of self-determination, since the Hong Kong people were not presented with any
other alternative. The I.C.J. concluded in part that “[t]he only way in which the
United Kingdom can … compensate [residents] in Hong Kong for the loss of the right
to self-determination is by the provision of rights of residence in the UK itself or ac-
ceptable third countries.””= But this compensation was not forthcoming. Only after the
major crisis of confidence brought about by the events in Tiananmen Square did the
British Government pass the British Nationality (Hong Kong) Act 1990,2″ which gave
50,000 selected Hong Kong families (approximately 225,000 people) the right of
abode in the United Kingdom.”

2 9 N. Miners, “The Normal Pattern of Decolonisation of British Dependent Territories” in Wesley-

Smith & Chen, eds., supra note 13, 44 at 53.

2’0 GA Res. 1541 (XV), UN GAOR, 15th Sess., Supp. No. 16, UN Doe. A/4684 (1961) 66, repro-
duced in Human Rights: A Compilation of International Instruments (New York: UN Centre for Hu-
man Rights, 1988) at 47ff. See R. Mushkat, “Hong Kong As an International Legal Person” (1992) 6
Emory Int’l L. Rev. 105 at 114.

2′ See Jayawickrama, supra note 218; L. Feng, “Electoral Reform in Hong Kong: A Comment”
(1994) 3:2 Asia Pac. L. Rev. 73 at 78-9; E.M. Amberg, “Self-Determination in Hong Kong: A New
Challenge to an Old Doctrine” (1985) 22 San Diego L. Rev. 839; International Commission of Jurists,
Countdown to 1997: Report of a Mission to Hong Kong (Cambridge: E. & E. Plumridge, 1992)
(Chairman: Sir W. Goodhart) c. 5, especially at 51 [hereinafter Countdown to 1997].

t “Countdown to 1997, ibiel at 53.
m lbia at 56.
2 (U.K.), 1990, c. 34.
w See M.K. Chan, “Democracy Derailed: Realpolitik in the Making of the Hong Kong Basic Law,
1985-90” in M.K. Chan & D.J. Clark, eds., The Hong Kong Basic Law.: Blueprint for “Stability and

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

The people of Hong Kong were further distanced from a right of self-
determination by their effective exclusion from the Basic Law drafting process. That
the I.C.J. has noted many inconsistencies between the final version of the Basic Law
and the Joint Declaration only goes to weaken the credibility of this undemocratic
process.” The Basic Law Drafting Committee was in charge of drafting the text and
submitting it to the Standing Committee of the National People’s Congress for ulti-
mate approval. It consisted of thirty-six mainland members and only twenty-three
from Hong Kong. The Basic Law Consultative Committee (B.L.C.C.) was to be re-
sponsible for gathering public opinion on the draft versions of the text. It consisted of
180 members, all Hong Kong residents. However, all members on both committees
were appointed by China, and the Hong Kong members “were overwhelmingly
drawn from professional and business sectors of the economy …”r Despite its at-
tempts to get public input, the operations of the B.L.C.C. were plagued by a consider-
able amount of Chinese influence through appointments made to the B.L.C.C. Ex-
ecutive Committee and Secretariat.28

One final act indicating that external self-determination would not be available to
Hong Kong was the failure to include in the Bill of Rights a provision corresponding
to article 1 of the I.C.C.P.R., one of the few omissions. Article 1 recognizes that “[a]ll
peoples have the right of self-determination. By virtue of that right they freely deter-
mine their political status and freely pursue their economic, social and cultural devel-
opment.” When Great Britain extended application of the I.C.C.P.R. to Hong Kong in
1976, there was a reservation to article 1 to the effect that Britain’s obligations under
the Charter of the United Nations would prevail where there was a conflict. This res-
ervation did not seem -to diminish Britain’s obligations with respect to self-
determination, however, since there are strongly worded provisions in the U.N.
Charter that also uphold the principle of self-determination.229 Hence, when the
United Kingdom went before the Human Rights Committee under the periodic report-
ing system of the I.C.C.P.R., they were repeatedly asked about the extent of their arti-
cle 1 obligations with respect to Hong Kong. Recognizing the external and internal
aspects of the right of self-determination, the Committee members routinely ques-
tioned the United Kingdom about their article 1 and article 25 (right to take part in

Prosperity” under Chinese Sovereignty? (Hong Kong: Hong Kong University Press, 1991) 3 at 29;
J.M.M. Chan, “Constitutional Developments in Hong Kong 1989-1993” in A.P. Blaustein, ed., Con-
stitutions of Dependencies and Special Sovereignties, vol. 8 (Booklet 4) (New York: Oceana Publica-
tions, 1993) 1 at 10-12.

.6.See Countdown to 1997, supra note 221, c. 14.
27 M.K. Chan, supra note 225 at 7.
8 See ibid
m See articles 1, 2 and 73 of the Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No.
7, 59 Stat. 1031, 145 U.K.T.S. 805. When the United Kingdom attended the Human Rights Commit-
tee meetings for consideration of its Third Periodic Reports Under art. 40 of the I.C.C.P.R. (UN Doc.
CCPR/C/58/Add I1 and Add 12), one of its representatives confirmed that the reservation to article 1
“did not purport to limit the right of self-determination” (UN HRC, 45th Sess., 1046th Mtg., UN Doc.
CCPR/C/SR.1046 (1991) at para. 40 [hereinafter HRC 1991]).

702

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conduct of public affairs) obligations at the same time.’ In reply, the British represen-
tatives argued that self-determination did not mean independence. They pointed to
their efforts to consult the Hong Kong people before signing the Joint Declaration
and to the various other attempts at consultation during the drafting of the Basic Law.
Finally, they highlighted the developments in representative government in Hong
Kong despite their reservation to article 25.”‘

Internal Right of Self-Determination: Self-Government

While the British repeatedly stated that self-determination, as applied in Hong
Kong, did not mean independence, they never went so far as to say that the principle
of self-determination, especially its internal dimension, had no application to Hong
Kong. Rather, against the backdrop of missed opportunities for allowing the people of
Hong Kong to exercise external self-determination, there emerges the right to vote.
Seen against this backdrop, the right to vote becomes the only legal means for Hong
Kong people to directly exercise the internal right of self-determination and thus to
have some say about their present and future lives. While Hong Kong people were
denied the opportunity to decide the external legal status of their territory, the right to
vote provided a limited basis for them to contribute to the internal ordering of their
governmentY2 In this context, the purpose of the domestic right to vote is necessarily
informed by
international norm of (internal) self-
determination. This significance lies in the concept of self-government –
that the
people of a country or dependent territory have an effective opportunity to determine
freely their own social, economic, legal and political systems. ” The application of the
internal right of self-determination in Hong Kong indicates that the purpose of the
right to vote has been the achievement of self-government. One can complain about
the level of self-government established by the British, but such criticisms cannot
change the teleological nature of the right to vote.

the significance of the

The purpose of the right to vote in Hong Kong could also be described as
“effective representation” (as the Supreme Court did in Canada); however, to restrict

2″ See UN HRC, 34th Sess., 856th Mtg., UN Doe. CCPR/C/SR.856 (1988) at paras. 21, 27, 28

[hereinafter HRC 1988]; HRC 1991, ibid. at paras. 14-18.
“‘ See HRC 1988, ibi at paras. 18,32-43,47; HRC 1991, ibid. at paras. 40-52.
22 See Mushkat, supra note 220 at 143-46.
3 See generally R. Higgins, “International Law and the Avoidance, Containment and Resolution of
Disputes: General Course on Public International Law” (1991-V) 230 Rec. des Cours 9 at 159-166.
Higgins writes:

The Human Rights Committee has consistently told States appearing before them for
examining of their periodic reports that the right of self-determination requires that a
free choice be afforded to the peoples, on a continuing basis, as to their system of gov-
ernment, in order that they can determine their economic, social and cultural develop-
ment. It has been made clear- and not just recently –
that this is virtually impossible
to achieve in a one-party State. Even in one-party systems that allow some form of
participartory democracy, the system itself is predetermined: the range of political,
economic and social choices is thereby already narrowed (ibid. at 165).

See also T.M. Franck, “The Emerging Right to Democratic Governance” (1992) 86 AJIL 46.

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

the meaning to this single purpose would not adequately capture the unique colonial
circumstances of Hong Kong. The value of self-government is less functionally de-
fined, but lies in the psyche of a colonial people who, for the first time in over one
hundred years, was given the opportunity to participate in the determination of its
country’s future. It is the autonomy of a people that is affirmed with the institution of
self-government.

Two further observations confirm this interpretation of the right to vote. First, the
British Government chose to democratize Hong Kong at a time when its colonial fu-
ture was already settled. Second, the gradual development of representative govern-
ment has politicized Hong Kong in a manner that is consistent with the values of self-
government.

It is no mere coincidence that representative government at all three tiers was ini-
tiated when the Joint Declaration had just been signed and the future of Hong Kong
was already settled. The 1984 Green Paper was published while the Joint Declara-
tion negotiations were already near completion. The initialized text was published on
September 26, followed by the publication of the White Paper on November 21.’ If
Britain believed in the virtues of “democracy for its own sake”, why did they wait
over 140 years to democratize Hong Kong? There were attempts between 1946 and
1952 to try to bring democratic changes to Hong Kong, but for a number of reasons,
including “fear that communist candidates might be preferred by the Hong Kong
electorate” or that the proposals might otherwise “provoke an adverse reaction from
China”, these plans never materialized.” Having signed the Joint Declaration, Brit-
ain’s fear that China might take unilateral action to recover the territory dissipated.
Since the Joint Declaration meant the complete end of British rule, the vested interest
to ensure absolute British control over the organs of government also disappeared. In
fact, the British Government was quite ready to start preparing for the future. The
Joint Declaration specified some very positive political aspirations for Hong Kong
that seemed unachievable were Hong Kong to remain a British colony. For example,
it promised the H.K.S.A.R. a “high degree of autonomy”, that it would be “vested
with executive, legislative and independent judicial power, including that of final ad-
judication”, that its government would “be composed of local inhabitants”, and that
the legislature would “be constituted by elections”. Given the certain deadline of
British rule and the promise of a relatively “autonomous” future, a strong impetus
behind Hong Kong’s democratic reforms must have been self-government. Since the
Hong Kong people were going to run Hong Kong after 1997, it seemed only logical
to give them some experience in doing so during the transition period. One of the
aims of the 1984 White Paper proposals tends to confirm this view:

mo develop progressively a system of government the authority for which is
firmly rooted in Hong Kong, which is able to represent authoritatively the

See N. Miners, “Moves Towards Representative Government 1984-1988″ in K. Cheek-Milby &
M. Mushkat, eds., Hong Kong: The Challenge of Transformation (Hong Kong: Centre of Asian
Studies, University of Hong Kong, 1989) 19 at 19-21.

2” Miners, supra note 219 at 51; see also N. Miners, “Plans for Constitutional Reform in Hong

Kong, 1946-52” (1986) 107 China Q. 463.

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views of the people of Hong Kong, and which is more directly accountable to
the people of Hong Kong. 6

Representative government at all three tiers was set in motion in 1985; subse-
quent developments reflected a people reaching gradual maturity in its self-
government. Many observers have noted how recent political developments in Hong
Kong and China have brought about a “rapid politicization of the Hong Kong peo-
ple.”‘ “3 Indeed, there has been an increasing awareness of political issues in the Hong
Kong electorate, and strong political parties and vocal representatives have
emerged.”

In the 1991 and 1995 Legislative Council direct elections, among the candidates
were those with interests leaning towards the policies of either Britain or China –
the
electorate chose neither. Instead, the party that won the majority of the directly elected
seats in both elections was the Democratic Party. This party’s track record shows that
it is not afraid to criticize either the British or Chinese governments, and that it pro-
motes the interests of the Hong Kong people. It is the party of self-government. At the
same time several democratically-minded independent members have won the pub-
lic’s favour. The introduction of democratic legislators in the Legislative Council
changed the nature of that institution. It polarized the Government and the legislators,
and challenged the executive-led system of government. The democratic legislators
critically examined the Government’s programme and started to introduce their own
legislation when the Government was reluctant to do so. This practice came to inter-
rupt the Government programme to such an extent that in his 1995 policy address,
Governor Patten explicitly referred to the use of his constitutional power to refuse as-
sent to bills passed by the Legislative Council where it would be in the “best interests
of Hong Kong”.2 .

It can no longer be said that Hong Kong is in its infantile stages of democracy. It
has been over a decade since the first territory-wide elections were held, and the his-
tory of representative government culminated in Governor Patten’s abolition of all
appointed members in 1995. Until July 1997, the project of self-government was well
on its way and the right to vote continued to fuel its progression.

The introduction of article 21 of the Bill of Rights can also be understood from
the perspective of self-government. In the earlier review of the history of the right to
vote (Part I), it was evident that there had been a gradual devolution of power to the
Hong Kong people between 1982 and 1991. This devolution was marked by the in-
creasing percentage of elected members on each tier, and by the bottom-up direction
of democratization. Initially, the process of devolution was heavily guided by the
British authorities, but over time, it became evident that a strong public interest in the

26 1984 White Paper, supra note 68 at parm. 2(a).
.7 M.tC Chan, supra note 225 at 9 ^×..
2″8 See J.T.M. Lam & J.C.Y. Lee, The Dynamic Political Actors in Hong Kong’s Transition (Hong

Kong: Writers’ and Publishers’ Cooperative, 1993) at 4-6.

SRt. Hon. C. Patten, 1995 Policy Address (to the Legislative Council, I1 October 1995) at para.
131, available at “Working with LegCo”, http://www.info.gov.hk/isd/speech/plegco.htm (7 August
1997).

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

705

process had developed. When the Bill of Rights. came into force, the District Boards
and Urban Council had already undergone four rounds of elections. The newer Re-
gional Council had witnessed three elections, while the Legislative Council had had
two elections and was about to welcome its first directly elected members (in Sep-
tember 1991). Hence, the Bill of Rights appeared at a time when the process of self-
government was well under way. The incorporation of article 21 into the law of Hong
Kong was just a natural step in this process, notwithstanding the events in Tiananmen
Square. British control of the process may have been necessary at the beginning to
lend guidance and interest in representative government; but it eventually became
necessary to “hand over” the reins of governance. After nine years of guided democ-
racy, the purpose of article 21 was to effect this handing over by way of an individual
human right.

It is difficult to outline the precise legal ramifications of recognizing this self-
government interest. The precise implications of this interest will depend on the facts
of each case. The overarching principle is that article 21 and section 13 ought to be
interpreted in a manner that is consistent with the values of self-government. Self-
government does not necessarily mean independence, but it does mean allowing the
Hong Kong people to design and operate the key political, social, economic, legal and
cultural institutions in Hong Kong. Most importantly, it means giving the Hong Kong
people the choice over how and whom they want to run these key institutions. With
respect to heads of power held exclusively by the sovereign, such as defence and for-
eign affairs, self-government implies that the people of Hong Kong ought genuinely
to be consulted on any decision that might have an impact on their lives.

IV. Hong Kong’s Right-to-Vote Cases

A. Residency Requirement Impugned: Lau San-ching
Mr. Lau wanted to be a District Board candidate in the 1994 elections, but his
nomination was rejected on the grounds that he had not “ordinarily resided in Hong
Kong for the 10 years immediately preceding the date of his nomination”, as required
by section 18(2) of the Electoral Provisions Ordinance.Y The rejection of his nomi-
nation came as a shock to Mr. Lau, who was born and raised in Hong Kong. After
obtaining a bachelor of science degree at the University of Hong Kong, he worked as
a teacher and then as a sales engineer in a computer company in Hong Kong. In De-
cember 1980, Mr. Lau started making short trips into Guangzhou, China to meet with
groups supporting political reforms on the mainland. On one such excursion in De-
cember 1981, Mr. Lau was detained by the Guangzhou authorities and was subse-
quently charged and convicted for the crime of counter-revolutionary sedition. He
was then sentenced to ten years in prison, and after serving the full sentence he re-
turned to Hong Kong on 26 December 1991. Since Mr. Lau was not physically in

“0 Supra note 41.

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Hong Kong for the whole ten-year period preceding 1994, his nomination was re-
jected by the returning officer.

After a failed attempt for judicial review of the returning officer’s decision prior
to the election,2′ ‘ Mr. Lau managed to file his complainant afterwards, by way of peti-
tion.2” He challenged the officer’s decision on two separate grounds: (1) that the offi-
cer misinterpreted section 18(2) (i.e., Mr. Lau really was “ordinarily resident” the ten
years preceding); and (2) that section 18(2) was inconsistent with article 21 of Hong
Kong’s Bill of Rights. Mr. Lau ended up winning on both grounds; but the decision on
the Bill of Rights issue may have been obiter dictum,” and Cheung J. was in any
event not prepared to declare repealed the legislation despite finding an inconsistency
with article 21.

The decision on the first ground was relatively straightforward, since it was
merely a matter of applying a leading House of Lords decision on the meaning of
“ordinary residence” – R. v. Barnet London Borough Council, ex parte Shah.'” This
case held that “ordinary residence” means habitual and normal residence in a particu-
lar place, “apart from temporary or occasional absences of long or short duration.”2”
Furthermore, the residence must be voluntarily adopted with a degree of settled pur-
pose. Mr. Lau had been ordinarily resident in Hong Kong until his detention in 1981.
However, his forced detention in China was neither voluntary nor for a settled pur-
pose; the resulting period of absence, Cheung J. held, could be seen as nothing more
than temporary and could not disrupt his period of ordinary residence in Hong
Kong.’

The decision on the Bill of Rights ground is somewhat more interesting, since it
was the first judicial opportunity to interpret article 21. In his approach, Cheung J.
recognized the constitutional status of article 21, identifying a “Bill of Rights regime”
in Hong Kong consisting of the B.O.R.O., the I.C.C.P.R., and article VII(5) of the
Letters Patent.”‘ He then borrowed from the existing jurisprudence and recognized
the need to adopt a “purposive approach” in construing the Bill of Rights.” On a plain
reading of the provision, Cheung J. found that article 21 gives every permanent resi-
dent in Hong Kong the right to vote and to run for election without unreasonable re-

24, See R. v. Apollonia Liu, ex parte Lau San-Ching (1994), 4 H.K.P.L.R. 400 (H.C.), Mayo J., aff’d
(1994), 4 H.KP.L.R. 415 (C.A.). The High Court and Court of Appeal held that judicial review prior
to the District Board election was not available to Mr. Lau. He had to wait until after the election to
bring his complaint by way of election of petition.

24″ See Lau San-ching, supra note 122.
23 Cheung J. begins his discussion of the Bill of Rights issue by saying, “having decided that Mr.

Lau was an ordinary resident, it was not necessary for me to reach a concluded view on the question
regarding the Bill of Rights” (ibid. at 47).

2″ [1983] 2 AC 309.
21 Ibi at 342, affirming the words of Lord Denning M.R. ([1982] Q.B. 688 at 720).
246 See Lau San-ching, supra note 122 at 47.
24 See ibi. at 48-49.

See ibid. at 49 (citing R. v. Sin Yau-ming, supra note 143).

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

strictions.”‘ He went on to say that it is the duty of the Crown to show that the resi-
dency requirement for candidacy is reasonable: “[T]he Crown must show that there is
a legitimate objective by [sic] imposing the restrictions, and that the rationality and
proportionality tests must be satisfied.”‘

Adopting parts of a Canadian decision,”‘ Cheung J. acknowledged three legiti-
mate objectives for having a residency requirement for voting and candidacy: (1) as-
surance of the integrity of the electoral process; (2) assurance that voters and candi-
dates are properly informed of the issues in any election; and (3) assurance that voters
and candidates have a sufficient connection with the territory. ‘ He then, went on to
find that having a ten-year residency requirement for candidacy was neither rationally
connected nor proportional to achieving the three legitimate objectives.”3 Although
Cheung J. gave a number of reasons for drawing this conclusion, he was primarily
moved by the great disparity in residency requirements between voters and candi-
dates.’ The legislative scheme at the time provided that all voters had to be ordinarily
resident for seven years preceding the date of registration, but there was an exception
for permanent residents of Hong Kong.”5 No such exception was made for the resi-
dency requirement for candidacy. An absurd result could therefore occur in the case
of a permanent resident returning to Hong Kong, for example, after a short and un-
happy attempt at living in Canada. This person would qualify to be a voter (because
of the exception) but would have to wait another ten years in order to run as a candi-
date. No adequate reasons were given to justify this differential treatment between
voters and candidates.

The Government tried to argue that the strict residency requirement was what the
public originally wanted in 1981, and that in the subsequent reviews of developments
in representative government, no real desire to alter the status quo emerged. Cheung J.
completely rejected these arguments by noting that the constitutional fabric of Hong
Kong had changed considerably since 198L. Blind appeals to public opinion could
not justify restrictions on fundamental human rights. There had to be rational reasons
behind the restriction.” As for the silence of the subsequent Government reviews,
Cheung J. wanted to see evidence that the Bill of Rights was considered before giving
this basis any weight.

29 See Lau San-ching, ibid. at 64.
2 Ibid.
” Reference re Yukon Election Residency Requirements (1986), 1 YR. 23 at 26, [1986] N.W.T.R.
213,27 D.L.R. (4th) 146 (Yukon C.A.).
252 See Lau San-ching, supra note 122 at 64-65.
,5 3 See ibid. at 65.
ibid. at 66.
2See
‘5 A status one could acquire by being wholly or partly of Chinese race and having ordinarily re-
sided in Hong Kong for a continuous period of seven years (see Immigration Ordinance, supra note
43, schedule 1 (para. 1)).

1 See Lau San-ching, supra note 122 at 67.
15 See ibid

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Although having found an unjustified infringement of article 21, Cheung J. was
not prepared to grant a remedy, since it was admitted by all parties that a residency
requirement of some form was needed: neither repeal of, nor deletion of words in, the
legislation would be satisfactory. He concluded: “It is hoped that the Government
would consider a comprehensive review of the residential restriction in our election
laws before yet another challenge is lodged in this area.”‘” Within six months of the
date of judgement, the Government did respond and on 13 July 1995, the residency
requirement for candidacy was changed from “10 years” to “3 years” immediately
preceding the date of nomination.”‘ However, not all the Legislative Council members
were content with this change. A private member’s bill was introduced to reduce the
period further, to 180 days.2″

The decision in Lau San-ching represents a serious attempt to give the rights in
article 21 a broad and effective meaning. The Court had no difficulty finding the resi-
dency restriction interfered with the right to vote and run for election; the only issue
was whether the Government could justify it. By subjecting the restriction to a rigor-
ous three-step limitations test, borrowed from the I.C.C.P.R. and Canadian jurispru-
dence, the Court gave meaningful content to the words “unreasonable restriction”,
avoiding unreasoned deference to Governmental action. But Cheung J. could have
gone one step further with respect to the identification of the purposes underlying ar-
ticle 21. Although part of his decision did recognize that the right to vote should be
given a purposive interpretation, he unfortunately failed to articulate the actual pur-
poses and interests protected by article 21. Identifying the achievement of self-
government and the protection of human rights as possible purposes could have as-
sisted his limitation analysis: they represent the values that weighed against the Gov-
ernment’s objectives for the residency restriction. Self-government was attenuated be-
cause the restriction arbitrarily restricted the pool of Hong Kong people who could
run for elections. In terms of the protection of human rights, the restriction not only
perpetuated an unjustifiable inequality between voters and candidates, but also arbi-
trarily diminished the potential representativeness of the elected body and the plural-
ity of viewpoints in the electoral process. Such pluralism is essential to the preserva-
tion of human rights in a free and democratic society.”‘ Nevertheless, Cheung J.’s
dismissal of the Government’s historical public-opinion argument has important im-
plications for the meaning of the right to vote. This aspect of the decision affirmed the
elevation of the right to vote to the level of a constitutional and human-rights norm in

.. IbkL at 69.
.9 See Electoral Provisions (Miscellaneous Amendments) Ordinance 1995 (Ord. No. 60 of 1995), s.
16.
261 As is recognized in paragraph 15 of “General Comment No. 25″, supra note 180:

Electoral Provisions (Amendment) Bill 1995, supra note 125, cl. 6.

The effective implementation of the right and the opportunity to stand for elective of-
fice ensures that persons entitled to vote have a free choice of candidates. Any restric-
tions on the right to stand for election, such as minimum age, must be justifiable on
objective and reasonable criteria. Persons who are otherwise eligible to stand for elec-
tion should not be excluded by unreasonable or discriminatory requirements such as
education, residence or descent, or by reason of political affiliation.

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

1991, marking a fundamental evolutionary step in the system of representative gov-
ernment in Hong Kong. Hence, arguments that attempt to freeze the right to vote in
pre-1991 colonial policies must be scrutinized, and rejected if they are inconsistent
with the I.C.C.P.R., Letters Patent and B.O.R.O.

B. Functional Constituencies Challenged: Lee Miu-ing
Ms. Lee and Mr. Law were permanent residents of Hong Kong who could regis-
ter to vote in the geographical constituencies but not the functional constituencies.
Ms. Lee was an assistant to a Legislative Councillor, and Mr. Law was a retired per-
son; neither his nor her status was recognized under the 1995 system of functional
constituencies. They challenged the system of functional constituencies on three lev-
els.” First, functional constituencies, they argued, violated the principle of universal
and equal suffrage because the system disenfranchised approximately one million
Hong Kong people who were eligible to vote only in the geographical constituencies.
Second, functional constituencies were repugnant to equal suffrage because the vast
differences in their size created gross disparities in voting power. Finally, individual
functional constituencies were attacked for their susceptibility to abuse and corrupt
practices that were inconsistent with values enshrined in article 21. The plaintiffs
ended up losing in both the High Court and the Court of Appeal, and leave to appeal
to the Judicial Committee of the Privy Council was denied. The arguments and deci-
sions for each part of the litigation will be discussed and analyzed below.

1. “One Person, One Vote”

At the most general level, it was argued in both the High Court and the Court of
Appeal that the system of functional constituencies breached the “one person, one
vote” principle protected by article 21(b), namely the right to “universal and equal
suffrage.” Ms. Lee and approximately one million other Hong Kong electors were
disenfranchised in the functional constituencies because their functional status was
not recognized by the system. This seems unreasonable.

In the High Court, the Attorney General presented two main arguments to defend
the scheme of functional constituencies. First, the Government pointed to the reserva-
tion to article 21 contained in section 13 of the B.O.R.O.: “Article 21 does not require
the establishment of an elected … Legislative Council in Hong Kong.” Afortiori, went
the argument, it certainly could not dictate the method of composing the Legislative
Council. The second main argument was framed in constitutional terms. The func-
tional constituencies derived their legality from articles VI(1) and VII(3) of the Let-
ters Patent, and, it was argued, co-existed in their legislated form with article VII(5),
the constitutional link to the B.O.R.O”6 In the alternative –
if co-existence was not

26. The legislative scheme challenged was contained in the Legislative Council (Electoral Provi-

sions) Ordinance, supra note 119.

.6 Articles VI(1) and VII of the Hong Kong Letters Patent (1917-1995), as amended by L.N. 406 of
1994 (Hong Kong Government Gazette, vol. 136, no. 26 (1 July 1994) Supp. No. 2, B 1462), provide:

710

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possible –
it was submitted that articles VI(1) and VH(3) formed an exception to the
I.C.C.P.R., according to the principle that the “specific overrides the general”. On this
point, the plaintiffs’ response was that article VII(3) had to be consistent with article
VII(5) and the Bill of Rights, meaning that functional constituencies could be permit-
ted in principle, but only if all geographical electors also had a functional-
constituency vote.

In construing article 21, Keith J. of the High Court made a fairly generous initial

statement recognizing the protection of equal voting power:

I have no doubt that the [right under article 21(a)), and the right of “universal”
suffrage guaranteed by [article] 21(b), requires every permanent resident of

VI. (1) 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.

VII(I) The Governor, by and with the advice and consent of the Legislative Council,
may make laws for the peace, order, and good government of the Colony.
(2) Without affecting the generality of paragraph (1), laws of the Colony may provide
for the holding of elections as regards the election of Members of the Legislative
Council. Such laws may provide for different categories of such Members and provide
generally, or in relation to a particular category of Member, for-

(a) different systems or methods of election;
(b) determination of constituencies and the number of Members to be returned in
respect thereof;
(c) qualification or disqualification, as regards electors, candidates for election or
such Members;
(d) tenure of office of Members.

(3) 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 ad-
dition to a vote in respect of a geographical constituency.
(4) Laws of the Colony may provide, as regards the election of the Members of the
Legislative Council, for the appointment of different dates for voting to take place in
respect of constituencies of different descriptions or elections of different categories of
Members.
(5) 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 in
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 in Hong Kong.

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

Hong Kong to be entitled to vote in the election of members to the Legislative
Council, and to be effectively represented by the members elected in their
constituencies. I equally have no doubt that the right of “equal” suffrage guar-
anteed by [article] 21(b) requires every permanent resident of Hong Kong to
have the same voting power and to be accorded votes of equal weight in such
elections.2″

In addressing the plaintiffs’ “one person, one vote” argument, Keith J. was prepared to
find aprimafacie violation of article 21:

mhe concept of equal voting power can only be satisfied by a system which
accords to each voter the same number of votes –
the “one person, one vote”
principle. Moreover, a restriction on the right of all voters to have the same
number of votes cannot be regarded as reasonable if the system which accords
more votes to some voters than to others does so by reference to distinctions
based on their status.2′

One other significant victory for the right to vote in Hong Kong was Keith J.’s inter-
pretation of the section 13 limitation, which effectively rendered the section a “dead
letter.”‘ ” He held that section 13 may have had some meaning before the Legislative
Council had elected members (prior to 1985), but that since elections to the Legisla-
tive Council were established, they had to be conducted in accordance with article 21
of the Bill of Rights.’6 7 This holding appears to represent the authority on this issue, as
there was no reference made to this argument in the Court of Appeal decision.

Despite finding a prima facie violation and rejecting the argument based on sec-
tion 13, Keith J. accepted the Government’s constitutional argument that the func-
tional constituencies were saved by article VII of the Letters Patent. Article VII(5),
while preventing the laws of Hong Kong from derogating from the rights contained in
the I.C.C.P.R., did not prevent the Letters Patent themselves from derogating from
those rights. On a plain reading, he readily construed article VII(3) as a derogation
from the right in article 25 of the Convention, and found added support for this con-
clusion in the fact that article VII(3) was added two years after article VII(5), which
implied that the Government was trying to immunize its 1995 election proposals to
challenges under the Letters Patent.

In the Court of Appeal, Bokhary J.A. wrote the majority decision on the substan-
tive issues.2″ Godfrey J.A. concurred in the result but applied a slightly different ap-
proach. At the outset of his decision, Bokhary J.A. unhesitatingly rejected the Gov-
ernment’s so-called “growing pains” argument, that Hong Kong’s electoral system
was at an embryonic stage and therefore had to be judged more sympathetically and
less stringently. He held that the real issue was “whether or not an unconstitutional

2′” Lee Miu-ling, supra note 123 at 189.
265 Ibid
2’6 See ibid at 197-98.
261 See ibid
26g See Lee Miu-ling (C.A.), supra note 123 at 587-94. Litton VP. adopted the reasons of Bokhary
J.A. but added further comments on the issue of standing and the form of relief requested by the ap-
pellants (see ibid at 595-97).

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inequality of suffrage has found its way into Hong Kong’s present electoral system
and not with how that system may evolve in future.”‘2 However, Bokhary J.A. was
also quick to note the serious consequences of accepting the plaintiffs’ arguments: (1)
the thirty functional-constituency members elected in 1995 would be disqualified; (2)
there would be no Legislative Council because the Letters Patent required that there
be sixty members; and (3) there would be no Legislative Council to enact the laws
necessary to re-form the Legislative Council –
this would have to be done by impe-
rial legislation. ‘

In addressing the plaintiffs’ “one person, one vote” argument, Bokhary J.A. upheld
the legislation on the same constitutional basis used by the High Court. He noted that
article VII(3) was in specific terms and that the system of functional constituencies came
squarely within that article.”‘ Since article VII “cannot be read as rendering unconsti-
tional something which goes no further than what it in terms permits”,2 it was held that
the legislative scheme was justified. Godfrey J.A. appeared to apply a slightly broader
approach by holding that irrespective of article VII(3), if the law “makes some distinc-
tion of status other than that of answering to a particular description, or imposes any un-
reasonable restriction on the right to vote, the law cannot stand with [article] VII(5).’
However, in applying these two additional tests, it appears that having already found it
to be consistent with article VII(3), Godfrey J.A. had little difficulty saying that the law
was neither unreasonable nor made any unjustified distinction of status.7 Without fur-
ther elaboration of these two tests, it is difficult to identify the practical difference be-
tween the approaches of Bokhary and Godfrey JJ.A.

The plaintiffs lost on this main issue not so much because of any article 21
analysis, since both Keith J. and the Court of Appeal were prepared to find a prima
facie violation, or in the words of Bokhary J.A., “a departure from identical treat-
ment”. 25 The basis for the defeat was a more general constitutional-law problem aris-
ing from two inconsistent provisions in the constitution. The basic notion underlying
the approaches to constitutional interpretation at both levels of court is that the State
can give with one hand and take back with the other so long as its intention is suffi-
ciently clear. Assuming this premise is acceptable as a general principle, 6 the ques-
tion remains whether the text of article VII(3) and the circumstances surrounding its
enactment demonstrated a sufficiently clear intention to derogate from article VII(5).

“9 Ibid at 590.
270 See ibid at 588-89.
21 See ibid at 593-94.
2
2 Ibid at 593.
2” Ibid at 594.
2174 See ibid at 595.
275 Ibid at 593.
216 See Reference re an Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148 at 1197-98,
40 D.L.R. (4th) 18, where there existed a potential conflict between a provision in the Charter, supra
note 133, and another one in the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3; the majority of the
Court resolved the conflict by holding “[i]t was never intended’..: that the Charter could be used to
invalidate other provisions of the Constitution, particularly A provision such as s. 93 which repre-
sented a fundamental part of the Confederation compromise” (Wilson J.).

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

Of course, the answer to this question is a product of interpretation, and all the prin-
ciples of constitutional interpretation discussed earlier should apply. Keith J. in the
High Court was particularly influenced by the timing of the promulgation of article
VII(3), as it was enacted some time after 1991, when the article constitutionalizing the
B.O.R.O. –
article VII(5) – was enacted. Bokhary J.A. did not even refer to timing
and, without much reasoning at all, concluded that the functional-constituency legis-
lation was clearly permitted by article VII(3).

Both courts failed to recognize one important common-law principle of interpre-
tation that has been used by courts for years to infer a legislature’s intention. Speaking
in the context of Canada’s Charter, Professor Anne Bayefsky has described the prin-
ciple in the following manner:

There is a presumption at common law that Parliament and the legislatures do
not intend to act in breach of international law, either customary or conven-
tional. Concomitantly, there is a principle of construction that Canadian law
should be interpreted, as far as possible, consistently with international law. In
other words, there is an interpretative presumption, applicable in the context of
construing the Charter, that Parliament and the legislatures intend to fulfil
Canada’s international obligations.2″

This common-law presumption dates back to 1883, when in the case of Bloxam v.
Favre,”8 it was held that “every statute is to be so interpreted and applied, as far as its
language admits, as not to be inconsistent with the comity of nations or with the es-
tablished rules of international law.””‘ In a more recent case, Salomon v. Commission-
ers of Customs & Excise,” Diplock L.J. said: “there is a prima facie presumption that
Parliament does not intend to act in breach of international law, including therein
specific treaty obligations.”‘” Keith J.’s finding that the functional-constituency
scheme violated article 21 despite the reservation in section 13 implied that the United
Kingdom was in violation of its international obligation under article 25 of the
I.C.C.P.R. He and the Court of Appeal ought to have considered the common-law
presumption in favour of international law in interpreting article VII(3) of the Letters
Patent. This is particularly true where, as in this case, the provision in question
(article VII(3)) is ambiguous and amenable to a reading that does not undermine the
meaning of the other provision (article VII(5)). The words “functional constituencies”
were not explicitly mentioned in article VII(3), and the description that is mentioned
–
could be narrowly
read to include only the potential geographical-constituency electorate. This would
ensure article VII(3)’s consistency with the dictates of “universal and equal suffrage”
in article 21(b) within the bounds of its plain meaning. The distinction between
“persons generally” and “persons of a particular description” would then refer to the

“persons generally or persons of a particular description” –

,” A.F. Bayefsky, International Human Rights Law: Use in Canadian Charter of Rights and Free-

doms Litigation (Toronto: Butterworths, 1992) at 20-21 [references omitted].

278 (1883), 8 P.D. 101, aff’d. (1884), 9 P.D. 130 (C.A.).
1 –
29 Ibid at 107.
280 (1966), [1967] 2 Q.B. 116 (C.A.).
28 Ibid at 143.

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Government’s continuing prerogative to subdivide the electorate into groups of a par-
ticular description. Under this reading, however, the entire electorate in the geo-
graphical constituencies would have an extra vote in the functional constituencies de-
signed by the Government.

At first blush, it appears from Godfrey J.A.’s decision that he was going to require
the Government to justify the functional-constituency legislation on the basis of the in-
herent limitation clause in article 21, irrespective of article VII(3)’s effect. However, in
holding that the law did not make distinctions of status other than those of answering to
a particular description, he failed to consider the “effect” of the legislation on particular
groups in society. Had he done so, it would have been apparent that the Government’s
scheme systematically disenfranchised marginal groups such as students, the elderly,
women who work at home, the disabled and the unemployed’ Whether intended or
not, the legislation had a disparate impact on these groups in a way that is repugnant to
the values of equality enshrined in the Bill of Rights and I.C.C.P.R. Godfrey J.A.’s
analysis of the “unreasonable restriction” limitation is equally disappointing. He stated
that it was “quite impossible” to hold that the functional-constituency scheme was an
unreasonable restriction on the right to vote, essentially because article VJI(3) allowed
such restrictions. But with respect, Godfrey J.A. ought to have subjected the whole
scheme, including article VII(3) of the Letters Patent, to a rigorous justification test de-
manding legitimate objective, rational connection and proportionality, as was done in
Lau San-ching.

2. Size of Functional Constituencies

The second challenge to functional constituencies was based on the great dispar-
ity in constituency sizes. The concept of “universal and equal suffrage” means that all
voters should have equal voting power. Where constituency sizes vary greatly, those
in a very small constituency have much more voting power than those in the larger
ones.

In both the High Court and the Court of Appeal, the Attorney General tried to ar-
gue that the functional constituencies were not impugned by the Bill of Rights on the
ground that they were reasonable when seen from the perspective of the historical de-
velopment of representative government in Hong Kong. This contextual argument
recognized that different countries were at different stages of political development,
and in the case of Hong Kong, functional constituencies were an essential link in a

The Human Rights Committee adopted the following observation on 1 November 1995:

The Committee considers that the electoral system in Hong Kong does not meet the re-
quirements of article 25, as well as articles 2, 3 and 26 of the Covenant. It underscores
in particular that only 20 of 60 seats in the Legislative Council are subject to direct
popular election and that the concept of functional constituencies, which gives undue
weight to the views of the business community, discriminates among voters on the ba-
sis of property and functions. This clearly constitutes a violation of articles 2, para-
graph 1, 25(b) and 26″ (HRC Observations, supra note 209, par. 65).

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

715

gradual process of political reform, which was leading gradually to a legislature
elected by universal suffrage.

Keith J. was quite willing to defer to the Attorney General’s contextual argument.
The following passage reveals how he adopted the Government’s reading of the his-
tory of representative government without, it is respectfully submitted, considering
whether the implications of that reading were reasonable:

It may be said that if there are twice as many accountants as engineers, the
Accountancy functional constituency should be represented by two members
of the Legislative Council rather than one. But I must, I think, bear in mind that
representative government is a relatively new phenomenon in Hong Kong, the
development of representative government is a gradual process, and the state of
political development in Hong Kong is an important factor in construing the
rights guaranteed by [article] 21 of the Bill of Rights. I do not read [article] 21
of the Bill of Rights, in the current state of Hong Kong’s political development,
as requiring particular groups of professionals or working persons to have
greater representation in the Legislative Council simply because there are more
of them. In other words, [article] 21 should not, at this embryonic stage in the
development of Hong Kong’s electoral process, be regarded as requiring sec-
tional interests to be represented in the Legislative Council proportionate to
their size.”

In the Court of Appeal, Bokhary J.A., as we have seen, had no difficulty in rejecting
this “growing pains” argument at the outset, calling it “a distraction from the real is-
sue.'” In his analysis, he first recognized that constituency sizes constituted a
“departure from identical treatment”, which was sufficient to shift the onus onto the
Government to justify “the departure” according to a three-step test. This test was
taken from one of Bokhary J.A.’s earlier decisions, in R. v. Man Wai-keung (No. 2), ”
which was a case interpreting the meaning of “equality before the courts” in article 10
of the Bill of Rights. Three things had to be shown to justify a departure from literal
equality:

that sensible and fair-minded people would recognize a genuine need for some
difference of treatment; two, that the difference embodied in the particular de-
parture selected to meet that need is itself rational; and, three, that such depar-
ture is proportionate to such need.

In applying this test, Bokhary J.A. had “no hesitation” in finding that sensible and
fair-minded people would recognize a need for some difference of treatment because
“by their very nature, functional constitutencies are bound to vary in size.”‘ ‘ He held
that it would not be feasible to devise groups defined by function and then force an

.. Lee Miu-Iing, supra note 123 at 192.
2 Lee Miu-ling (C.A.), supra note 123 at 590. While Bokhary J.A. was prepared to decide this is-
sue on the merits, the other two justices had greater difficulty with whether the plaintiffs had sufficient
standing to bring the complaint. Given that neither was entitled to vote in the functional constituency,
it was held that they had no particular interest in the varying sizes of those constituencies.
2. (1992) 2 H.K.P.L.R. 164 (C.A.) [hereinafter Man Wa-keung (No. 2)].
2.Lee Miu-ling (C.A.), supra note 123 at 591, citing Man Wai-keung (No. 2), ibid. at 179.
‘”Lee Miu-ling (C.A.), ibid.

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equal number of persons into each. With respect to the second and third branches of
the test, Bokhary J.A. gave a rather cursory analysis stated mostly in conclusory
terms:

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 constitu-
encies 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.

Would sensible and fair-minded people condemn that arrangement as irrational
or disproportionate? The question does not fall to be answered by public opin-
ion 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 2’

A fundamental problem with the decisions from both courts was the failure to un-
derstand the purposes underlying article 21(b), having regard to the philosophical values
of the right to vote considered within Hong Kong’s historical context. Such an under-
standing would have been particularly appreciated in the Court of Appeal’s first decision
on the meaning and proper approach to article 21 of the Bill of Rights. While Keith J.
did refer to Hong Kong’s political history in construing article 21, with respect, his char-
acterization and interpretation of that history were problematic. Given the historical and
contextual analysis suggested earlier in this paper, it cannot be said that Hong Kong is at
an “embryonic stage” of democratic development. Even Cheung J. in Lau San-ching
presented a different picture of Hong Kong’s political past:

One simply has to recognize that there has been great changes [sic] in Hong
Kong since 1981. There has been greater participation by the population in
public affairs in terms of election and standing as candidates in the District
Boards, Municipal Councils and Legislative Council elections.2″

The Court of Appeal was therefore correct to reject Keith J.’s historical charac-
terization. However, it would be wrong to understand Bokhary J.A.’s rejection of the
historical argument as suggesting that history and context are irrelevent to article 21
analysis. In fact, what is missing in Lee Miu-ling is the comprehensive reading of
Hong Kong’s political, constitutional and social context necessary to discover the
purposes of the right to vote. Having undertaken such a reading in this paper, the dual
purposes of self-government and the protection of human rights have emerged. Be-
cause of the “explicitness” of the words “equal suffrage” in article 21(b), and for other
reasons, it has been argued that absolute equality in constituency size must be the
starting point. In accordance with McLachlin J.’s approach in the Canadian jurispru-
dence, deviation from this standard is permissible so long as it is consistent with the
values of self-government and the protection of human rights. While Bokhary J.A.
did recognize that absolute equality was the starting point, and that any departures
therefrom would have to be justified by the Crown, he then skipped directly to the
three-step “reasonableness” test. He missed the intermediate step of considering
whether the departure from equality could be justified by the purposes of the right to

2.bid. at 592.
2 9 Lau San-ching, supra note 122 at 67.

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

717

vote. In the analysis that follows, this intermediate step will be taken using the
framework presented in this paper; Bokhary J.A.’s three-step reasonableness test will
also be discussed.

The disparities in the 1995 functional constituencies were inconsistent with val-
ues of self-government and the protection of human rights, nor could they be justified
on the basis of effective representation. To appreciate the negative consequences of
having gross disparities in constituency sizes, it is first important to recognize the two
distinct functions performed by elected representatives. According to McLachlin J. in
the Electoral Boundaries Reference,

[e]ach citizen is entitled to be represented in government. Representation com-
prehends the idea of having a voice in the deliberations of government as well
as the idea of the right to bring one’s grievances and concerns to the attention
of one’s government representative; … elected representatives function in two
roles – legislative and what has been termed the “ombudsman role”.29

In the High Court, Keith J. recognized that functional constituencies had a legitimate
objective of giving “different sectional interests a voice of their own in the Legislative
Council.”‘” Naturally, functional-constituency representatives have a duty to represent
their sectional interests in the Legislative Council. At the same time, it should not be
forgotten that these same representatives play an “ombudsman role” vis-4-vis the
members in their respective constituencies. As the size of a functional constituency
increases, the representative’s effectiveness in carrying out this role is diminished
given an anticipated increase in the number of grievances, inquiries and concerns. As-
suming that sectional interests are equally valued, it appears difficult if not impossible
to justify the disparity in voting power on the basis of effective representation, as
there is no apparent good reason why certain functional constituencies should be af-
forded more effective representation over others.

By looking more closely at who exactly is disadvantaged by the legislative
scheme, it becomes apparent that the scheme cannot be justified on the basis of, and is
indeed inimical to, self-government and the protection of human rights. When Gover-
nor Patten arrived in Hong Kong, he introduced nine new functional constituencies
without changing the existing ones. With these new constituencies, Governor Patten’s
intent was to enfranchise 2.7 million people from the working class. But by distribut-
ing these people within only nine constituencies, their voting power was considerably
weaker than the voting power of the approximately 200,000 electors in the twenty old
functional constituencies.’ Underlying this gross disparity was social and economic
inequality. The old functional constituencies, building on those put in place in 1985,
represented the elite business, industrial, professional and local-government organi-
zations, while the electors in the new constituencies were working-class people in
various economic sectors (see Table 6 in Part I). The 1995 legislative scheme disad-
vantaged the latter group even though simple working people, compared to profes-
sionals and business executives, are less capable of fending for their human rights.

2 Electoral Boundaries Reference, supra note 154 at 183 [emphasis in original].

Lee Miu-Iing, supra note 123 at 192.

292 Figures taken from ibiL at 191.

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Similarly, this sector of society will tend to lack the political connections and eco-
nomic clout to have an effective say in the conduct of public affairs. In most cases,
how effectively a representative performs his or her ombudsman role will determine
whether the least powerful will have a voice in the political process. A scheme of
functional constituencies that gives the least powerful members of society the least ef-
fective representation is clearly inconsistent with the values of self-government and
the protection of human rights.

Keith J.’s treatment of the “unreasonable restriction” clause was somewhat dissap-
pointing and inconsistent with the extensive treatment accorded to it by Cheung J. in
Lau San-ching. Keith J. failed to give any content to what is meant by “unreasonable
restriction”, and failed to invoke the concept of proportionality in his reasoning. He
stated:

Functional constituencies will by definition vary greatly in size. Thus, if there
are, for example, twice as many accountants than engineers, the electorate in
the Accountancy functional constituency is going to be twice as large as the
electorate in the Engineering functional constituency. If that means that the
votes of engineers carry greater weight [than] the votes of accountants, that is
merely a function of the existence of more accountants than engineers. To the
extent, therefore, that in this example the rights of accountants to equal suffrage
with engineers can be said to be restricted, the existence of more accountants
than engineers renders that restriction reasonable.!”

In framing the issue in this manner, it is respectfully submitted that Keith J. took for
granted the reasonableness of the Government’s decision, first, to establish functional
constituencies for accountants and engineers, per se, and, second, to assign the same
number of representatives to each constituency. It must always be remembered that
when a court considers whether the restriction is reasonable, it has already found a
prima facie violation of the principle of “equal suffrage” and thus of the right to vote.
It is for the State to then justify the reasonableness of the impugned scheme by dem-
onstrating that the restrictions are proportionate responses to the achievement of the
legitimate objective –
in this case, the representation of sectional interests. It is
submitted that Keith J. should have measured the infringment against the entire legis-
lative scheme, and asked whether the Government could have designed a system of
functional constituencies meeting its legitimate aim of providing representation for
sectional interests without causing such a disparity in voting power. The answer to
this question must be yes. There were many small constituencies with interests similar
enough (e.g., local government bodies) to have been grouped together without injur-
ing the representation of their particular sectional interests. As for the larger groups, it
may have been necessary to break them up into separate constituencies or to assign
them more representatives in the interests of the constituents’ “ombudsman” and
“legislative” needs. While Keith J. considered the possibility of increasing the number
of representatives for larger constituencies, as argued earlier, his dismissal of this idea
in deference to the Government’s contextual argument is most unsatisfactory.

29 /”I at 192.

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

While Bokhary J.A.’s formulation of a limitation test was an improvement over
Keith J.’s deferential approach, the former’s application of that test was equally dis-
appointing. First, the precise authority for his formulation was unclear. Although his
three-step test mimics the limitation tests used in Lau San-ching and under the
I.C.C.PR. and the Canadian Charter, material differences in both formulation and
application appear under close scrutiny. Bokhary J.A. cited Man Wai-keung (No. 2) as
the authority for his test. In that case the defendant argued that the statutory bar
against recovery of costs (where a successful appeal leads only to a new trial) violated
the right to equality before the courts guaranteed in article 10 of the Bill of Rights.”
There were three separate decisions and each judge appears to have formulated his
own limitation test.”‘ Bokhary J.A. invoked the test he would later use in Lee Miu-
ling, but cited no authority for it. As a result, it is unclear whether the first step of
Bokhary J.A.’s test (whether sensible and fair-minded people would see a need for the
distinction) is the same as the first step under the I.C.C.P.R. system or the Canadian
Oakes test (whether the objective of the legislation is pressing and substantial). ‘ In
the Oakes test, the government is forced to articulate the reasons and purposes behind
the legislation and to justify their importance. In applying the first step of his test in
Lee Miu-ling, Bokhary J.A. failed to identify the legitimate objectives behind the
scheme of functional constituencies. He simply stated that sensible and fair-minded
people would see a need for the distinction because it is inevitable that functional
constituencies would be of different sizes. This conclusion of course says nothing
about the importance of the legislative objectives. Nor did Bokhary J.A. subject the
legislation to rigorous tests of rationality and proportionality; he resolved these issues
by simply stating that sensible and fair-minded people would not necessarily agree on
how to draw up functional constitutencies. But the importance of the purposes of the
right to vote demand that the government’s limitation of that right be subjected to a
more rigorous test of proportionality. Asking whether the state has chosen the means
to its legislative objective that minimally impairs the individual right is a much fairer
assessment of proportionality than abstract speculation of what sensible and fair-
minded people would think. Had Bokhary J.A. taken this further step of assessing
minimal impairment, the various possibilities for arranging the functional constituen-
cies so as to ensure equality in constituency size while maintaining representation-of

The opening of art 10 reads:

All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law … (Bill of Rights, supra note 2, art. 10).

2″ Silke V.P. approached the issue by looking at the rationality, the reasonableness and the propor-
tionality of the distinction (see Man Wai-keung (No. 2), supra note 285 at 168ff.). Nazareth J.A.’s ap-
proach most closely paralleled the approach used in Canadian Charter jurisprudence. He first tried to
identify the necessary or desirable social objective of the legislation, and then applied the rationality
and proportionality tests (see ibid at 177-78). Bokhary J.A.’s decision (see ibid at 178ff.) is discussed
in the text.

‘9 See Oakes, supra note 159.

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sectional interests would have been sufficient to ground a finding that the 1995 con-
stituencies were unjustifiable.

One cannot help thinking how much of the reasoning in the Court of Appeal was
motivated by perceived consequences of allowing the plaintiffs’ appeal within the
context of a narrow approach to constitutional remedies. The possibilities of ordering
appropriately worded declarations and of editing the legislation by striking out certain
words and phrases were completely dismissed as being outside the jurisdiction of the
Court. Nor was there any discussion of suspending the operation of a declaration of
unconstitutionality, or of withholding the remedy to allow the legislature to address
the problems identified, and to effect a remedy only if after some time, the legislature
has refused to take the requisite steps (the approach used in Lau San-ching).

3. Subsidiary Complaints

Finally, the legitimacy and integrity of individual functional constituencies were
attacked. These arguments were made in the High Court but later withdrawn at the
Court of Appeal. Essentially, the point was that government-established constituen-
cies that were open to manipulation were inconsistent with the democratic values en-
shrined in article 21. The plaintiffs pointed to the “Rural” and second “Commercial”
functional constituencies as examples of constituencies that practiced gender and ra-
cial discrimination in the selection of candidates and members. They also pointed to
the abuses of corporate voting, and cited the vulnerability of some constituencies to
corrupt practices, an evident problem in the 1991 elections.”‘

In dismissing a number of these subsidiary arguments, Keith J. resorted to his
earlier comment that “equal voting power” did not mean “absolute equality” in voting
power.” It appears that Keith J. may have misconceived some of these arguments as
bearing only on the principle of equal suffrage, missing the fact that they point more
generally to the Government’s duty to set up an electoral system that is not suscepti-
ble to fraud or manipulation. This principle is fully reflected in article 21, which re-
quires that permanent residents be given the “opportunity” to exercise the right to
vote at genuine periodic elections guaranteeing the free expression of the will of the
electors. It is also interesting to note how the evidence of gender discrimination in the
Rural functional constituency was dealt with.’ Keith I again accepted the contextual
“growing pains” argument, holding that in light of the “state of political development
in Hong Kong … [and] [i]n view of the progress being made towards the elimination
of discriminatory electoral practices in the New Territories,” the method of choosing
members to the Rural constituency had no impact on whether there had been an in-

2″ See Lee Miu-ling, supra note 123 at 193ff. See generally R.Y. Kwok, “Government and the

Electoral Process: The Need for Review” in Votes Without Power, supra note 214, 187 at 188.

‘9’See Lee Miu-Iing, ibid. at 194.

The electors in the Rural functional constituency were members of the Heung Yee Kuk, com-

prised almost entirely of male village representatives.

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

fringement of article 21.’ In case he erred on any of these points, Keith J. had no dif-
ficulty dismissing the plaintiffs’ subsidiary complaints for lack of standing?’

V. The Future of the Right to Vote in Hong Kong

A. Constitutional Impediments
The increasing representativeness of the Legislative Council under the Basic Law
represents only one facet of the future of the right to vote in Hong Kong. A compre-
hensive understanding of the right must take into consideration inevitable legal and
political encroachments. There are a number of restrictions on the right to vote con-
tained in the Basic Law. The restrictions affect the right from different angles, and
primarily concern the composition and powers of the Legislative Council.

Article 57 specifies that all the Legislative Council members must be permanent
residents of the H.K.S.A.R., and eighty percent must be Chinese citizens with no right
of abode in any foreign country. This proportional limit poses serious problems of
implementation. Under the prescribed system of elections, it seems impossible to
guarantee the eighty-percent minimum without discriminating against potential can-
didates or validly elected members. In light of the implementation problems, it may
mean that the twenty percent allowance will be read out of the article and all candi-
dates will have to be Chinese citizens with no right of abode in any foreign country.

A further limit on the Legislative Council’s membership is disguised in the power
of the President of the Legislative Council to declare any member of the Council no
longer qualified for the office.” The President shall exercise this power in seven dif-
ferent situations: where a councillor loses the ability to discharge his or her duties, is
absent from meetings for three consecutive months without valid- reason, loses per-
manent-residency status, accepts a government appointment, is bankrupt or fails to
comply with a court order to repay debts, is convicted and sentenced to imprisonment
for one month or more, or is censured for misbehaviour or breach of oath. The last
two grounds require a two-thirds majority of all the Legislative Council members pre-
sent. Overall, these restrictions go much further than those under the Electoral Provi-

See Lee Miu-ling, supra note 123 at 196.
Though Keith J. may have been correct that the plaintiffs did not have standing to bring these ar-
guments, he did not properly recognize their substance. For example, where it is true that women
have been effectively excluded from becoming electors in a functional constituency representing
“rural interests”, these women have simply not had the right and the “opportunity” to vote and to run
for election. Even if it could be shown that private individuals were directly responsible for treating
women unfairly at the village level, there was still a positive obligation on the Government to provide
the opportunity to vote.

See Basic Law, supra note 4, art. 79. Article 71 provides that the President is to be elected from
among the members of the Legislative Council; however, he or she must be a Chinese citizen of not
less than 40 years of age, “who is a permanent resident with no right of abode in any foreign country
and has ordinarily resided in Hong Kong for a continuous period of not less than 20 years.”

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sions Ordinance, leaving the Legislative Council’s elected President with a significant
degree of power.

One of the significant changes in the operation of the Legislative Council since it
acquired democratically minded members in 1991 had been the increase in the num-
ber of private member’s bills. ‘ It was a means to focus public attention on important
issues, and forced the Government to become more accountable to the Hong Kong
people. The Basic Law appears to reverse this democratic trend, pushing towards
more of an executive-led system. Article 74 declares that Legislative Council mem-
bers may introduce private member’s bills “which do not relate to public expenditure
or political structure or the operation of the government.” It goes on to say that bills
relating to “government policies” require the consent of the Chief Executive before
they may be introduced. Depending on how this section is interpreted, it appears that
greater restrictions now exist on the power to introduce private member’s bills.

Another important restriction on the law-making powers of the Legislative
Council is contained in Annex II, under the heading “Procedures for Voting on Bills
and Motions”. Government bills require only a simple majority of all members of the
Legislative Council to pass. However, motions, bills or amendments to government
bills introduced by individual members of the Legislative Council require a simple
majority in two separate groupings of the Legislative Council: (1) members returned
by functional constituencies; and (2) members returned by geographical constituen-
cies through direct elections and by the Election Committee. From 1991 it was al-
ready apparent that the functional-constituency membership and the directly elected
members had opposing interests. The former group had strong economic interests and
were more conservative in their decision-making, while the latter group, consisting
primarily of outspoken members of the Democratic Party, had no hesitation in criticiz-
ing the Hong Kong and Chinese Governments on issues of human rights and democ-
racy. The method of voting in the Basic Law seems to take advantage of this polari-
zation to reduce the power of all Legislative Council members to criticize and alter
the Government’s legislative programme.

These impediments become a greater cause for concern when the prescribed rules
for interpreting and amending the Basic Law are considered. Unlike all other common-
law jurisdictions, where the courts are the guardians of the constitution,’ article 158
vests the power of interpretation of the Basic Law in the Standing Committee of the Na-
tional People’s Congress. In certain situations, the courts in the H.K.S.A.R. must seek an
official interpretation from the Standing Committee, such as dealing with a provision of
the Basic Law concerning affairs that are the responsibility of the Central People’s Gov-
ernment or concerning the relationship between the Central Authorities and the Region.
In light of China’s resistance to Governor Patten’s democratic reforms, anticipated en-
croachments on the right to vote can only be aggravated by reserving the final interpre-
tation of the Basic Law to a political body of the People’s Republic of China.

3 See C. Yeung, “Warning over private bills” South China Morning Post (5 August 1995) 4, for the
concerns of one Government official about this recent trend.
3′ See e.g. U.S. Const. art. mH, 2: “The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution …’

19971

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

Finally, article 159 provides that the power of amendment shall be vested in the
National People’s Congress. The H.K.S.A.R. may propose bills to amend the Basic
Law, but it must first receive the consent of two-thirds of the deputies of the Region in
the National People’s Congress, two-thirds of all the members of the Legislative
Council and the consent of the Chief Executive. Above all, no proposed amendment
shall contravene the established basic policies of the People’s Republic of China re-
garding Hong Kong. Once proposed, the final decision is in the hands of the National
People’s Congress. The difficulties of amending the Basic Law only go to entrench its
encroachments on the right to vote.

B. Real and Anticipated Encroachments
Political encroachments become legal ones when the words and actions behind
the former become translated into laws of general application. Chinese political en-
croachments on the right to vote in Hong Kong intensified steadily after the break
down in diplomatic talks over the 1994-95 electoral arrangements. To the chagrin of
many in Hong Kong and around the world, the Chinese political threats have slowly
materialized into actual laws and institutions in the period leading up to and after the
transfer of soveignty. A review of some of the more significant encroachments in this
period follows.

1. The Provisional Legislature: Democracy in Reverse

The provisional legislature is China’s political response to the implementation of
Governor Patten’s democratic reforms. It is probably true that when the Basic Law
was promulgated, there was an honest intention on the part of China to permit some if
not all of the 1995 Legislative Council members to continue to sit into the second half
of 1997. Of course, this was under the assumption that China could dictate the man-
ner of elections in 1995 and that Britain would defer to the incoming sovereign. But
this was not to be, and relations between the two countries became unsettled with
Governor Patten’s arrival. China was not pleased with the content of his opening ad-
dress to the Legislative Council in October 1992; they were equally infuriated with
the fact that the Governor went straight to Hong Kong with his proposals without first
consulting and meeting with the future masters.’ Although Governor Patten had fully
intended to negotiate with China before implementing his proposals, his entrance did
not set a pleasant tone for the subsequent negotiations. After seventeen rounds of
talks, the parties were unable to reach an agreement. In February 1994, Britain unilat-
erally issued a White Paper on representative government in Hong Kong explaining
why the talks had failed and why it had to go ahead with legislation to implement the
Governor’s original proposal.’ This action did not please the Chinese authorities,
who responded with their own paper blaming the failure to reach an agreement on the
British.m

3 See J.M.M. Chan, supra note 225 at 15.
3 See 1994 White Paper, supra note 63.
m See Facts about Sino-British Talks, supra note 78.

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China had always held that Patten’s proposals were in violation of the Joint Dec-
laration and the Basic Law; hence, in the course of negotiation, they were only will-
ing to accept one of Patten’s proposals, namely the lowering of the voting age. In re-
sponse to Governor Patten’s unilateral action, the Chinese authorities stated that there
would be no “through train” for the 1994-95 three-tier political system; the system
would be dismantled and they would set up their own political bodies in accordance
with the Basic Law in or prior to 1997.’ One such body was the Preparatory Working
Committee, set up in June 1993, approximately two-and-a-half years before the offi-
cial Preparatory Committee was to be established according to the Basic Law.’
China’s explanation for this early intrusion was the need for preparation, yet it clearly
showed their willingness to interfere with the political affairs of Hong Kong.

The announcement of a provisional legislature was made around the time that ne-
gotiations broke down between China and Britain.”‘ If China was going to reassemble
the Legislative Council in 1997 according to the Basic Law, then presumably this
would be by elections, similar to what was done in 1995. However, China argued that
a newly elected Legislative Council could not immediately be assembled on 1 July
1997; to prevent a vacuum, it was necessary to have some kind of interim legislature
while preparations for the eventual elected one were taking place. In July 1995, it was
reported that this “provisional legislature” would be established as early as July
19962″ China justified this intrusion by claiming that a legislature was needed to en-
dorse the appointment of judges to the Court of Final Appeal (to be established on the
date of transfer) and to pass laws –
that had to be in
place after 19972

required by the Basic Law –

On 21 December 1996, 130 candidates were considered by a China-appointed
400-member selection committee for the sixty-seat Provisional Legislative Council.
Most of the pro-democracy legislators, including the members of the Democratic
Party, refused to be involved in this selection process.”‘ After its establishment in De-
cember 1996, the provisional legislature stationed itself on the mainland and began
the process of drafting laws, which, according to China and the designated
H.K.S.A.R. authorities, had to be in place on or shortly after 1 July 1997 in order to

… See ibid. at 55; J.M.M. Chan, supra note 225 at 20-21; “U.K.-China Relations”, supra note 78 at

xlix.

See J.M.M. Chan, ibid. at 23.

3o See Y. Ghai, “Back to Basics: The Provisional Legislature and the Basic Law” (1995) 25

H.K.L.J. 2 at 2.

3.2 See C. Yeung & K.Y. No, “Concerns on parallel legislature” South China Morning Post (17 July
1995) 1.
311 See ibid.
323 See Mickleburgh, supra note 106. It also appears that the Hong Kong public in general did not
approve of the provisional legislature. In a survey published in March 1997, 48 percent said the 1995
elected Legislative Council was the best body to protecte their interests; only four percent cited the
provisional legislature. Fifty-eight percent said the latter was less representative of their views (see R.
Mickleburgh, “Hong Kong upbeat, poll shows” The [Toronto] Globe & Mail (15 March 1997) A9).

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

avoid a legal vacuum.”‘ On the date of the handover, the provisional legislature was
officially sworn in, taking over the chamber of the Hong Kong Legislative Council
building. A decision by the Preparatory Committee on 24 March 1996 indicated that
the provisional legislature would cease to operate after the first legislature was
formed, which was to occur no later than 30 June 19982″ H.K.S.A.R. officials have
already promised elections in accordance with the Basic Law in May 1998.”

The provisional legislature is the most profound denial of the right to vote in
Hong Kong. Its presence prior to the handover undermined the legitimacy and
authority of the 1995 democratically elected Legislative Council. And the right to
vote became a mockery once the provisional legislature overshadowed the 1995 body.
Now, after 1 July 1997, the provisional legislature is the highest law-making body in
the S.A.R., yet is accountable to no one (other than perhaps its sovereign creator). The
large proportion of pro-democracy legislators elected in 1995 was criticized by the
Chinese Government; it is now clear that the provisional legislature is an instrument
for dismantling Governoi Patten’s broad electoral reforms lest the results of the 1995
election are repeated.”” In mid-May 1997, the Preparatory Committee proposed
changes to the electoral laws used to elect the 1995 Legislative Council. It was pro-
posed that Chief Executive Tung would have to choose either a “multiple seat, single
vote” method, or a system of proportional representation; in any case, the “one seat,
one vote”/”first-past-the-post” system, which allowed the Democrats to win the vast
majority of the directly elected seats, was to be replaced for a system that would ef-
fectively guarantee pro-Beijing representation.”‘ On 8 July 1997, at the end of its first
week in power, the Tung government confirmed its plans for a proportional-

314 A recent challenge to the provisional legislature’s authority to pass legislation for Hong Kong
prior to 1 July 1997 was dismissed by the Hong Kong High Court (Sears J.). While the decision ap-
pears to rest on the Court’s lack of jurisdiction over the actions of the body in Shenzhen, the Court
also added that even if the conduct was occurring in Hong Kong, it would not be unlawful (see C.
Buddle & C. Yeung, “Judge halts bid to challenge handover body” South China Morning Post, Inter-
national Edition (21 June 1997); see also L. Choy & A. Li, “‘Innovative’ legislature faces challenge
in courts” South China Morning Post (12 April 1997) 1). On 29 July 1997, the Court of Appeal con-
firmed that the Provisional Legislative Council was a legal body. Martin Lee, chairman of the Demo-
cratic Party, said that “[the decision] raised ‘very serious implications for the future of Hong Kong’s
rule of law and autonomy’
(C. Parsons, “Legislature left open to attack” South China Morning Post
(30 July 1997) 1 at 1).

3. Decision of the Preparatory Committee on the Establishment of a Provisional Legislature of the
H.K.S.A.R., para. 7 cited in A.H.Y. Chen, “Comment: The Provisional Legislative Council of the
SAR” (1997) 27 H.K.L.J. I at 11.

316 See R. Mickleburgh, “Foreign money flowing in as Hong Kong’s hopes soar” The [Toronto]
Globe & Mail (24 May 1997) A17; J. Manthorpe, “Hong Kong democrats to be barred from vote”
The [Montreal] Gazette (11 July 1997) A12.

“‘ See C. Yeung, “Poll result raises fear of mainland backlash” South China Morning Post (19

September 1995) 1.

” See “Hong Kong protest: Governor assails China over new election laws that undercut democ-
racy” The [Montreal] Gazette (27 May 97) B7; “Hong Kong gets election promise” The [Montreal]
Gazette (24 May 97) A22; “Hong Kong: How reassuring” The Economist (24 May 1997) 38; C. Ye-
ung, “The polls that point the way to the future” South China Morning Post (1 March 1997) 19.

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representation system for the 1998 elections.”9 Clearly, the establishment of an
unelected, unaccountable, unrepresentative provisional legislature wielding power,
even if only for a period of a year, does not bode well for the future of the right to
vote and of other fundamental human rights.

2. Abolition of the Hong Kong Bill of Rights Ordinance

When the B.O.R.O. was being considered by the Legislative Council, several
senior Chinese officials criticized the move and expressed doubt as to whether the
Ordinance would exist after 1997.2 One such official was particularly concerned
about entrenching the Bill of Rights, since this would be creating a new class of statute
law which the Basic Law did not recognize. 2’ Even up to and after the handover, the
Chinese authorities (and eventually the H.K.S.A.R. authorities) continued to complain
about this elevated or entrenched status of the Bill of Rights.2 The provisional legisla-
ture is now the vehicle for realizing “roll-backs” of the significant human-rights pro-
tections gained during the last seven years of British administration. The Chinese cite
article 160 of the Basic Law as their authority for carrying out this plan. The article
provides that the laws of “British” Hong Kong must go through an “adoption” proc-
ess to become laws of the H.K.S.A.R. The Standing Committee of the National Peo-
ple’s Congress may prevent the continuation of a law where it declares the law “in
contravention of [the Basic] Law.”

Some academics have argued that the Basic Law and the Bill of Rights are consis-
tent and should co-exist after 1997.” Their arguments point directly to article 39,

3,9 The Economist reported the decision as follows:

Mr. Tung and his allies want to reduce the already small democratic element to a
minimum: the previous 20 geographical constituencies [see Table 7 in Part I above] are
to be merged into five, each with three to five members. This is intended to ensure that
the strength of political parties with a broad base will be substantially diluted. Martin
Lee, the leader of the Democratic Party, which dominated the disbanded legislature but
is completely unrepresented in the provisional legislature, says that the proposals put
forward by Mr. Tung mark the start of the “Singaporisation” of Hong Kong (“Typhoon
Tung starts sweeping” The Economist (12 July 1997) 36 at 36).

..0 See N. Jayawickrama, “The Hong Kong Bill of Rights: A Critique” in Chan & Ghai, eds., supra

note 171, 55 at 56-57.

321 See Jayawickrama, supra note 108 at 74-75, citing Lu Ping, deputy secretary-general of the Ba-

sic Law Drafting Committee.

n See “PWC asks China to bury Bill of Rights” South China Morning Post (18 October 1995) 1;
“China backs proposal to remove statute’s power to ‘override’ legislation” South China Morning Post
(19 October 1995); R Wesley-Smith, “Maintenance of the Bill of Rights” (1997) 27 H.K.L.J. 15; R.
Mushkat, “Scrapping Hong Kong Legislation: An International Perspective” (1997) 27 H.K.L.J. 12.

32′ See Y Ghai, “The Bill of Rights and the Basic Law: Inconsistent or Complementary?” in G. Ed-
wards & A. Byrnes, eds., Hong Kong ‘s Bill of Rights: 1991-1994 and Beyond (Hong Kong: Faculty
of Law, University of Hong Kong, 1995) 53 [hereinafter Ghai 1995]; Bymes & Chan, eds., supra
note 12 at 215; Y. Ghai, “Compatibility of the Bill of Rights and the Basic Law” in G. Edwards & J.
Chan, eds., Hong Kong’s Bill of Rights: Two Years Before 1977 (Hong Kong: Faculty of Law, Uni-
versity of Hong Kong, 1995) [hereinafter Tivo Years Before 1997] 125; J.M.M. Chan, supra note 225
at 3. For a diverse selection of views on this issue, see appendices A-E in Two Years Before 1997,

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S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

727

which specifies that the I.C.C.PR. as applied to Hong Kong shall remain in force and
shall be implemented through the laws of the H.K.S.A.R. Professor Yash Ghai has
noted that it would be absurd to repeal the B.O.R.O. under article 160, when the legis-
lature would have to turn around to pass essentially the same law under the authority
of article 392″

If, notwithstanding, the B.O.R.O. is repealed in its entirety after 1997, a detrimen-
tal effect on the right to vote is quite possible. Hong Kong would lose the elaborate
expression of this right contained in article 21 of the Bill of Rights, and it is uncertain
whether the courts of the H.K.S.A.R. would adopt the article 21 jurisprudence in in-
terpreting the right to vote in the Basic Law, which is expressed in much simpler
terms. In that event, it appears that article 39 would provide a good basis for doing so.

Implementing Article 23 of the Basic Law: Restrictions on
Expression and Assembly

If the right to vote is to flourish in Hong Kong, the political and social atmos-
phere must encourage its exercise. Unfortunately, article 23 of the Basic Law is inimi-
cal to the creation of this atmosphere.”= It provides that the H.K.S.A.R. shall enact
laws to prohibit any act of treason, secession, sedition or subversion against the Cen-
tral People’s Government. Furthermore, there is to be a prohibition against foreign
political organizations from conducting political activities in the Region, and against
political organizations of the Region from establishing ties with foreign political
bodies. Expansive interpretations of this section would seriously undermine the fun-
damental freedoms of expression and assembly. The laws could create a chilling ef-
fect on the right to vote and jeopardize the possibility of having completely free and
open elections.

The H.K.S.A.R. administration has already taken a number of steps to resurrect
old sections of the Societies Ordinance32 and Public Order Ordinance,2’ which were
originally repealed because of their inconsistency with the Bill of Rights.2 Amidst
public outrage against the roll-back of human rights, the S.A.R. administration issued
a consultation paper and then held extensive consultations with the public over a
three-week period in April 19972″‘ While it appears the administration took the con-

ibid, where one finds, respectively, the opinions of the Preliminary Working Committee, the Judici-
ary (on behalf of the chief justice, Sir Ti Liang Yang (as he then was)), the Hong Kong Government
(per the Attorney General’s Chambers), Mr. Justice Benjamin Liu, and the Hong Kong Bar Associa-
tion.

‘” See Ghai 1995, ibidL at 63.
.See generally D. Clark, “Sedition and Article 23” in P. Wesley-Smith, ed., supra note 218, 31.
“16 Cap 151.
327 Cap245.
“s See Mushkat, supra note 322; Wesley-Smith, supra note 322.
.29 See A. Li, “Academics alert Tung to liberties risk” South China Morning Post (30 April 1997) 6;
C. Yeung, “Tung invited to discuss rights row with Qian” South China Morning Post (6 May 1997) 6;
C. Yeung, “Feedback on proposed curbs ‘not surprising’ South China Morning Post (8 May 1997) 9;
K.Y. No & L. Choy, “I won’t silence my critics -Tung” South China Morning Post (8 May 1997) 1.

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sultations seriously and reconsidered a number of its initial proposals,'” some restric-
tions on the rights of assembly and expression, so as to implement article 23, are cer-
tain. When these restrictions come to be scrutinized in the context of the right to vote,
it is hoped that the judiciary will be mindful of the following statements from the
Human Rights Committee’s “General Comment No. 25”:

25. In order to ensure the full enjoyment of rights protected by article 25, the
free communication of information and ideas about public and political issues
between citizens, candidates and elected representatives is essential. This im-
plies a free press and other media able to comment on public issues without
censorship or restraint and to inform public opnion. It requires the full enjoy-
ment and respect for the rights guaranteed in articles 19, 21 and 22 of the
Covenant, including freedom to engage in political activity individually or
through political parties and other organizations, freedom to debate public af-
fairs, to hold peaceful demonstrations and meetings, to criticize and oppose, to
publish political material, to campaign for election and to advertise political
ideas.
26. The right to freedom of association, including the right to form and join or-
ganizations and associations concerned with political and public affairs, is an
essential adjunct to the rights protected by article 25. Political parties and
membership in parties play a significant role in the conduct of public affairs
and the election process. States should ensure that, in their internal manage-
ment, political parties respect the applicable provisions of article 25 in order to
enable citizens to exercise their rights thereunder. 3′

Conclusion

One must admit that the right to vote in Hong Kong has had a short but fascinat-
ing history. Born in 1982, elevated to the status of a constitutional and human right in
1991, bestowed upon the widest-ever Hong Kong electorate in 1994-95, dismantled
in 1997 –
the right to vote appears to have come full circle within only fifteen years.
Such is the fickleness and indeterminacy of the right to vote’s political reality. Fortu-
nately, Hong Kong is a place where the law is not lacking. The legal reality of the
right to vote is supported by a framework consisting of the Joint Declaration, the Ba-
sic Law, the B.O.R.O., the I.C.C.P.R., and international norms that bind all countries.
The continued existence of this legal reality means that the courts of Hong Kong will
go on interpreting and applying the right to vote as new cases come along.

It has been argued in this article that the meaning of the right to vote in Hong
Kong is iniformed by the purposes of self-government and the protection of human
rights. The right to vote necessarily includes the concept of “universal and equal suf-
frage”. It has been submitted that where this concept is invoked as a result of an ine-
quality in voting power, a prima facie breach of the right to vote occurs when there
has been a deviation from absolute equality that cannot be justified on the basis of
self-government or the protection of human rights. It is contemplated that this allow-

See Mickleburgh, supra note 316; “Hong Kong: How reassuring”, supra note 318 at 39.
, Supra note 180.

1997]

S. YOUNG – THE MEANING OF THE RIGHT TO VOTE

729

ance from absolute equality permits the government to ameliorate the human-rights
conditions of disadvantaged groups, by giving them a greater degree of voting power
and political representation, without violating the spirit and letter of the right to vote.
Once a breach is established, it can be justified by the government if it is shown that
the restriction has a legitimate objective, is rationally connected and a proportional re-
sponse to the objective, and does not discriminate on any of the enumerated grounds
listed in article 1(1) of the Bill of Rights. Recognition of the dual fundamental pur-
poses of the right to vote requires that the impugned govenment scheme be subjected
to a rigorous limitations test and not simply accepted out of blind deference for the
status quo.

As set out in the introduction, another important objective of this article was to
convey a methodology for determining the meaning of the right to vote, or any other
human right contained in a constitutional document such as the Basic Law. One of the
central problems with the decisions in Lee Miu-ling was that they failed to assess
critically the legislative scheme against a conception of the right to vote that takes into
consideration the historical, social, political and constitutional context of Hong Kong.
Lau San-ching, however, was certainly an optimistic first step in lending a broad
meaning to article 21(b). Future cases should follow in the development of that
precedent. In accordance with the “living tree” metaphor, the meaning of the right to
vote in Hong Kong will likely evolve. It is hoped that such evolution takes place in
accordance with the principles of interpretation set down in this article –
according to
the rule of law. It would be a tragedy for all concerned if the tree were abandoned to
die.

The Meaning of the Right to Vote in Hong Kong

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