Functional Constituency

In Chan Yu Nam, the question was whether Art 26, which says that permanent residents shall have the right to vote and the right to stand for election in accordance with Law. The question for the Court was whether this right has prevented from corporate groups electing in the Functional Constituency. Its to be noted that the challenge is not directed at the constitutionality of Functional Constituency. Approach taken by the CA: - Any interpretation of the Basic Law must be purposive and contextual, so it is to the whole of the Basic Law that we must look for the answer to the question posed in this case. It could be that that examination and, to the extent permissible, extrinsic material and history, that .. - History is also relevant as its the historical background that let to the utterance of the words in a constitution. Purpose:  Basic Law provides continuity of the region.  The theme of the Joint Declaration may, it seems to me, fairly be described as one of continuity, though not stagnation, of the systems then in place.  The history is a matrix against which the merit of the legal arguments may be tested.  The history is infused with the theme of gradual progress from an appointed legislature to the goal of universal suffrage, a goal deliberately not yet reached. That theme is evident in the reservations to the ICCPR; the announced intention of their continued application after 1997; Green and White Papers in 1984; the terms of the Basic Law itself in 1990, in particular art. 68; the 1990 Explanation; and the 2004 Interpretation. Context: - Art 21 BORO, art 25, ICCPR right and opportunity, without any of the distinctions mentioned in art. 1(1) and without unreasonable restrictions, to take part in the conduct of public affairs. - However, in this regard, the terms of s. 13 of the Ordinance are important: Article 21 does not require the establishment of an elected Executive or Legislative Council in

Hong Kong. Gradual process Art. 68 is instructive. It refers to the actual situation in Hong Kong. The actual situation contemplated was self-evidently that pertaining from time to time and one further sees that art. 68 provides that the method for forming future legislative councils is to be in accordance with the principle of gradual and orderly progress with an ultimate aim of universal suffrage. Then, against that background, the CA asked what then is the meaning of art. 26, purposively construed in context and how can it reasonably be said to sit comfortably with corporate voting? - The legislature can give other entities other than permanent residents right to vote - The language of the statute itself doesnt use only - (Note, in the CFI, Andrew Chung J held that Art 26 is intended to apply to functional constituency)

Two months ago, in Chan Yu Nam, in the CFI, Andrew Chung J, in the context of constitutionality of corporate voting for Functional Constituency, approached the issue of art 21 of BORO (right to vote), Art 25 ICCPR, this way: - (Para 110) its true that article 25(b) of the ICCPR has an internationally recognised meaning. However, so far as domestic law is concerned, article 25(b) assumes constitutional significance only by virtue of article 39 of the Basic Law. Article 39(1) of the Basic Law provides that the provisions of the ICCPR

as applied to Hong Kong shall remain in force and shall be implemented through the laws of HK. In 1990, there had already been elections for functional constituencies in Hong Kong comprising, amongst other things, corporate voting the extent to which article 25(b) of the ICCPR was applicable to Hong Kong was to be determined as at 1990 and article 39(1) of the Basic Law seeks to maintain only that position after the establishment of HK In particular, in the present context, article 39, to the extent that it renders article 25(b) of the ICCPR a constitutional guarantee in Hong Kong, must be read together with article 26, covering permanent residents rights to vote, and with article 68 and Annex II, dealing with the ultimate aim of universal suffrage and elections for functional constituencies. Whilst the meaning of article 25(b) is generally fixed, it being a covenant in an international convention, its application in Hong Kong must be determined by reference to the Basic Law, read as a whole.

Does FC breach the Art 26 right to vote and therefore unconstitutional? HERE THE FIRST QUESTION IS WHETHER ART 26 APPLIED AT ALL. Allowing any other persons, whether natural persons or legal entities, to vote would amount to a dilution of the right given to permanent residents to vote in the same election. It would amount to an infringement of a permanent residents right to vote. 14. However, as has been pointed out in Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166, 186-187, paras 55-62, the right to vote in article 26 is not an absolute right. When read together with article 39 of the Basic Law and article 21(b) of the Hong Kong Bill of Rights, the right to vote may be restricted or otherwise interfered with if (1) the restriction or interference is prescribed by law; and (2) such restriction or interference does not contravene article 21 of Hong Kong Bill of Rights. 15. The correct test to apply to determine a permissible restriction or interference is the proportionality test. Chan Kin Sum, at pp 187-194, paras 63-77. 16. In short, to the extent that article 26 applies to an election or a particular type of election, only permanent residents of the Special Administrative Region have the right to vote. Any attempt to give to others the same right to vote must be justified in terms of the proportionality test. 19. If article 26 applies to elections for functional constituencies, one is, of course, required to consider the justification for corporate voting in terms of the proportionality test. However, the antecedent question here is whether article 26 applies, and is intended by the Basic Law to apply, to elections for functional constituencies at all. If the answer is in the negative, and article 26 is not engaged, the question of justification simply does not arise. Here then argue that it didnt even intend to apply.

Purposive Approach and Meaning of Universal Suffrage The Court of Final Appeal (CFA) in Ng Ka Ling said that Basic Law is a living instrument intended to meet changing needs and circumstances and a purposive approach should be applied. Therefore in ascertaining the true meaning of the instrument, the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context. So it is to the whole of the Basic Law that we must look for the answer to the question posed in this case. The context is to be found in the Basic Law as a whole, as well as extrinsic materials such as BORA, ICCPR. Then, against that background, then

we need ask what is the meaning of universal suffrage in Art 68, purposively construed in context? - Purpose:  Basic Law promotes the policies in the Joint Declaration, (Chan Yu Nam) The theme of the Joint Declaration may, it seems to me, fairly be described as one of continuity, though not stagnation, of the systems then in place.  Therefore this provisions purpose in the Basic Law is to maintain status quo, yet promote gradual development of democracy, its meant to achieve at gradual and orderly progress. - Context:  Art 39 BL preserves ICCPR, as applied under BORO in HK. This brings us to Art 21 BORO, art 25, ICCPR, right and opportunity to participate in public affairs, to vote etc, without any of the distinctions.  However, in this regard, s. 13 is also important and it says that article 21 doesnt require an elected LegCo or Executive. Therefore, its important to remember that FC has long been in existence even before 1990 when the ICCPR came into effect and thus  In addition, its important to remember that article 39 of Basic Law, to the extent that it renders article 25(b) of the ICCPR a constitutional guarantee in Hong Kong, must be read together with article 26, covering permanent residents rights to vote, and with article 68 and Annex II, dealing with the ultimate aim of universal suffrage and elections for functional constituencies.  Finally, history is also important (Chan Yu Nam) The history is infused with the theme of gradual progress from an appointed legislature to the goal of universal suffrage, a goal deliberately not yet reached. That theme is evident in the reservations to the ICCPR; the announced intention of their continued application after 1997; Green and White Papers in 1984; the terms of the Basic Law itself in 1990, in particular art. 68; the 1990 Explanation; and the 2004 Interpretation. The background suggests that existence of functional constituency is constitutional, it existed even before ICCPR, and the purpose as well as the context suggest that it must be constitutional. In addition, the SC 2005 and 2007 decision made it clear that currently the half-and-half ratio between functional constituency and geographical constituency should remain unchanged. Against this background, what are the specific requirements of universal suffrage? Once functional constituency was found to be constitutional, a variation in size of different functional constituencies was an inevitable result, and therefore its inevitable that weight of each vote is different. Therefore equality principle cannot apply on this aspect. However, for the number of votes enjoyed by every elector, we can prohibit an elector from exercising his vote for more than one constituency which he otherwise would be entitled. Therefore the number of votes is the same for all elector. We may also set up new functional constituencies including all voters, or allowing functional constituencies to nominate candidates to be elected by all voters.  The history is a matrix against which the merit of the legal arguments may be tested.  The history is infused with the theme of gradual progress from an appointed legislature to the goal of universal suffrage, a goal deliberately not yet reached. That theme is evident in the reservations to the ICCPR; the announced intention of their continued application after 1997; Green and White Papers in 1984; the terms of the Basic Law itself in 1990, in particular art. 68; the 1990 Explanation; and the 2004 Interpretation. Art. 68 is instructive. It refers to the actual situation in Hong Kong. The actual situation contemplated was self-evidently that pertaining from time to time and one further sees that art. 68 provides that the method for forming future legislative councils is to be in accordance with the principle of gradual and orderly progress with an ultimate aim of universal suffrage.

Whether the existing form of Functional Constituencies is compatible with these requirements: Functional constituency is a unique feature in Hong Kong, under which a member of the functional constituency is entitled to vote for the return of a member to the Legislative Council. The current system: still 30/30 but from 2012 onwards, 10 more seats would be added to LegCo in 2012, with 5 elected by universal suffrage and the other 5 elected by "quasi-universal suffrage", with all voters having two votes (instead of the existing system of 200,000 voters having two votes and 3 million having only one) Ordinary people in Hong Kong will therefore be able to vote for political parties of their choice, not only in the five newly created seats elected directly by universal suffrage, but also in the other five newly created seats of the District Councils functional constituency. The percentage of LegCo seats elected by *267 universal suffrage or quasi-universal suffrage (in the case of the District Councils constituency) will thus increase from 50 per cent (in the existing system) to 57 per cent. It cannot be denied that this is a step forward in terms of the democratisation of the HKSAR. But this still doesnt satisfy the above requirement, it would have been had all functional seats be selected through quasi-universal suffrage. It creates an elitist group the members of which enjoy a vote in addition to the vote in their geographical constituency. The size of the electorate of the functional constituencies varies significantly; the smallest one can have only 39 members. Problem with the system: - This system has long been criticised for being discriminat:ory. The Human Rights Committee has concluded in functional constituency elections were incompatible with Article 25 of the ICCPR the concept of functional constituencies, which gives undue weight to the views of the business community, discriminates among voters on the basis of property and functions. - (1) discriminate against the unemployed by allowing the employed two votes - (2) difference in the size of the functional constituency infers that the value of some vote is greater than the others. - the functional constituency system in Hong Kong enables a powerful elite group to dominate the legislature, and the elected representatives of the people have only a weak voice. The Government is able to push through any legislation by engaging sufficient support from some elected representatives and the majority of the functional constituency representatives.