Tutorial 5: The Government of the HKSAR and

the Constitutional Development of Hong Kong

1. Joshua Wong who is 19 years old applies for judicial review to challenge the
following provision of the Legislative Council Ordinance (Cap. 542): Section
37(1) A person is eligible to be nominated as a candidate at an election for a
geographical constituency only if the person (a) has reached 21 years of age
Advise Joshua

Act of state: foreign affairs, whether we have jurisdiction

Fact of state: refers to the content of act of state court will take whatever
statement of facts from the government

Will Hong Kong recognize certain entities as state? Does HK recognize US as

state? facts of state
Does HK follows China in Congo China will issue a certificate Act of state
(reference to NPCSC)
What counts a legitimate aim? Normally in the ordinance. But It is not necessary
to be stated in the law up to the govts lawyer to put forward. The wordings in
the BL, limitation will be allowed to protected public moral, public interest very
board categories arguments by the govt will potentially fall within the
category court to access whether it is legitimate

(1) What is the right concerned?

Right to stand for election

Right to participate in public life

o

Fundamental right in political context (normally a high level of

scrutiny):

what level of scrutiny do we apply? -> very vigorous

political context makes the level of scrutiny lower? (i.e.

overrides the right?)

seemingly peculiar case

o

Why should it be harder to restrict differential

treatment due age -> Signal of backseat of the

government and dilution of right protection

Justification: natural revolution of different level of

scrutiny

(2) Prescribed by law

Specified in law
o

Yes stated in basic law

Sufficiently precise
o

Clearly guide conduct

Mwan: the central question is who gets to decide what age: less of a right issue,
more of a separation of power issue

very subjective judgment

Executive/judiciary/legislature?
o

The court said: legislature;

Why not court: Political decision which is not on the point of law

The court should take a slightly more hands-off approach

Margin of appreciation: do it before the 3 stages test; the proportionality can be

applied in a way that entailed lower scrutiny

(3) Proportionality test (when lower scrutiny is applied, to which limb?)

Legitimate aim

Rational connection

No more than necessary?

o

Political context;

Structure
(1) What kind of rights
right to vote and right to stand for election; fundamental rights -> scrutiny
of courts will be of higher degree
(2) Prescribed by law
(3) Proportionality test
Legitimate aim
o Aim: ensure people who are running are of sufficient mutuality for

societal issue -> likely legitimate

Rational connection
o Minimum age is to ensure sufficient mutuality
No more than necessary
o Why need to be 21 how to determine the age?: may not withstand
judicial scrutiny

Relevant case

Kwok Cheuk Kin

o Rights concerned
Right to vote stand for election are fundamental rights (para
o

73)
Lower level of scrutiny
a non-absolute fundamental rights
since it arises in the context of politics, it involves
exercising pre-eminent political judgment, and does
not adopt manifestly without reasonable foundation
between the scrutiny of fundamental and socio

economic rights
greater degree of deference as to the aim of limb 1 and limb

3
Implication in light of Kwoks case
the challenge may fall: it lowers the standard of review
distinguished from this case:
Kwok is about by-election vs this case minimum age

for stand for election different fundamental rights

in this case, the court generalize and decide on the
level of scrutiny - the court is differential with the

rights and context (the election itself)

Not to use equality as argument HRC on Art 25 of ICCPR
there are two different stages of considerations (1)

eligibility/is someone eligible the age question (2) once

decide one is eligible so if based on this eligibility whether
there is discriminatory here we are still dealing with stage
o

1 argument on equality does not apply.

** Is there a dilution on scrutiny even thought we have judicial
independence in Hong Kong, it doesnt mean very much as the
court adopts such a low level of scrutiny as the level of scrutiny

develops. **
Kwok Cheuk Yin the 5 electors still have the the right to stand for
election, just about their status on resignation there is eligibility ~
discriminatory
But in court, it may pinpoint on the higher generalization
right to stand for election / election scenario and what will be
disruptive on the effective functioning of the legislature.

depend on precedent cases

o The word pre-eminently the extent
o The level of generality
UK the age is reduced from 21-18 in January ~ but uncertain whether it

can be used as reference point

Right to vote (18) and right to stand for election (21) law recognizes
people at age 18 are sensible enough for election.

2.

Consider the following two proposals and discuss the questions on the
proposals.

Proposal A: Semi-Presidentalism
(1) The Chief Executive (CE) will appoint a person who can get the majority
support of the Legislative Council (LegCo) to be the Chief Secretary (CS).
(Usually, it will be the leader of the majority party or a coalition in the LegCo

but it is not required to be so.)

(2) CS will make recommendation to the CE on the nomination of principal
officials to the Central Peoples Government (CPG).
(3) CS and the principal officials can be members of LegCo but it is not required
to be so.
(4) CS and the principal officials will be directly responsible for the day-to-day
operation of the government (policy making, bill proposal, budget setting,
and policy implementation).
(5) CE will chair the cabinet meeting.
(6) CE will continue to exercise the formal powers granted to him/her under the
Basic Law on the recommendations of the CS.
(7) CS and the cabinet are accountable to the LegCo. The LegCo can pass a vote
of non-confidence on the CS and the cabinet. If passed, the CS and the
cabinet will have to resign. CE then will have to appoint a new CS.
(8) CE can make a request to the CPG to dismiss CS.
(9) CE retains the actual power to refuse to sign a bill or a budget passed by the
LegCo and to dissolve the LegCo in accordance with the provisions of the
Basic Law.
Questions:
(a) Does the Basic Law need to be amended to implement the proposal?

In terms of the power of CE/ Executive branch

o Art 48 CE can exercise formal power
CE power is still protected in chairing the executive
o

meeting -> no need amendment

Art 60 CE should be the head of government
CS will be the one operating the government (policy-making,
bill proposal) -> uncertain whether its rights/role overlaps

with the role of head of government

In terms of interrelationships with LegCo
o Art 49, 50 power to refuse to sign a bill & power to dissolve LegCo
Retain such powers -> no need amendment of BL

(b) Will the implementation of the proposal contravene the doctrine of

executive-led form of government?

Accountability and check and balance

The power to appoint members of Exco
o Art 55 CE has the power to appoint local business or community
leaders as his advisor

to the Exco

under the semi-

presidentialism CE only has indirect power to elect principal

o

officials/ cabinet/ executive council

CE able to push forward policy more easily, why?

(c) Can this proposal improve the relationship between the LegCo and the
Executive Authorities?

Aims:
o Check and balance
o Prevention of filibuster
o CE is more a background figure less role to play Given element
of

democracy

and

broader

representation

improving

the

relationship between LegCo and exco

(d) Will the implementation of the proposal allow the doctrine of executive-led
form of government to be actually carried out?

Doctrine of executive-led form of government by Zhang Xiaoming

o High degree of autonomy subject to the authority of the CPG
o CE of HKSAR holds the core position of the entire political system
o

dual accountability Head of government and executive authorities

If CS can push through the govt policy more efficiently yes not
necessarily entrenching the executive form of govt?

(e) What may be the obstacles to the implementation of the proposal?

BL seems to avoid party politics (?) CE should not have any political

affiliation
If CS is from pro-establishment camp LegCo and Exco deadlock still occur
with the presence of opposition party

(f)

Do you have any suggestion to improve the proposal to enhance its chance
of success?

Principal officers not appointed but elected by proportional representation

increase representativeness

Proposal B: New Functional Constituencies

(1) All eligible voters can have two votes, one under the geographical
constituencies and the other under functional constituencies.
(2) On the basis of the existing functional constituencies and the different policy

areas of existing government policy bureaus, 20-30 new functional

constituencies (NFC) will be established. The establishment of a particular
NFC will be based on the recommendation of an independent electoral
commission after a territory-wide consultation.
(3) Every voter can choose to be registered as the elector for any NFC of his/her
won choice. A voter can choose more than one NFC and can have 10
choices. Voters in the registration will indicate the order of priority of his/her
choices for the selected NFC (e.g. 1, 2, 3,4, .10). Voters choices of NFC
and priorities for the election in the coming election of the Legislative
Council can be changed after the election and before the election of the next
Legislative Council. having order of priority ~ if the certain FC does not
be enough base factor for registered electors can put into the second
priority
(4) A base factor of registered electors will be set. Assuming that there are
3,000,000 electors and there are 30 seats of the Legislative Council returned
from functional constituencies, the base factor will be 100,000 registered
electors3,000,000/30=100,000).
(5) If a particular NFC can have registered electors more than the base factor, a
seat will be allocated for that NFC. If the number of registered electors is two
times of the base factor, two seats will be allocated and so forth.
(6) If a NFC cannot have sufficient number of registered electors, no seat will be
allocated.
(7) If the first choice of the NFC of a voter is allocated with one or more seats,
he will vote in that NFC in the coming election. If his/her first choice is not
allocated with any seat, his/her second choice will be considered. If the
second choice has one or more seats allocated, he/she will vote in that NFC
in the coming election. A voter will be assigned to a NFC following his/her
order of priority until a NFC that he/she has registered is allocated with a
seat.
(8) Any registered elector of a NFC can stand as a candidate in election of that
NFC. Any registered elector of a NFC can also nominate another registered
elector of that NFC to be a candidate. Any registered elector of a NFC must
get the nomination from a specified number of registered electors of the
same NFC before he or she is entitled to be a candidate for that NFC.

Questions:
(a) Can the proposal satisfy the requirements of universal and equal suffrage?

Reservation of ICCPR Art 25(b) is no longer applicable

o S13 of BORO Art 21 does not require the establishment of an
o

elected Executive or Legislative Council in Hong Kong

The section was established during the colonial period by the UK

government
HRC arguments in relation to Britains report on behalf of preHandover Hong Kong the treaty reservation only works in so far
as Hong Kong did not have, and was not have an elected legislature
but now, since HK has an elected legislature art 25 of the ICCPR

applies and should be observed in its entirety.

Current problem of FC vary in size. Create new FC that every voter can
decide what FC can be created use of the base factors

(b) What

may

be

the

rationale

for

reforming

the

existing

functional

constituencies to NFC?

Universal suffrage one person one vote

(c) From the perspective of administrative arrangements, is the proposal

workable?
(d) From the perspective of political legitimacy, is the proposal practicable?
(e) Do you have other suggestion to reform the functional constituencies to
allow this form of election be retained in 2020?
(f)

Should the functional constituencies, reformed in whatever ways, be

retained in 2020?

(g) If the functional constituencies were to be abolished, what is the chance of

getting two-third of the members of the LegCo to support the electoral
reform package?
Idea in FC
-

In the period of decolonization, in order to maintain the stability of

decolonization ensure the most educated (most influential sectors) will

have the say and see Hong Kong through transitions

The FC will either be broaden more democratic or abolished
But difficult to make FC fully representative ~ very complicated

procedures
Abolish how to draw up constituencies

The question of rights

-

Structure
What is the restriction? Is it proportional? (test)
Where is rights of litigation going?
Level of scrutiny?
Common law way of thinking eg. In light of art 158 common law method

of interpretation to cave out a sphere

Question of purpose, how to distinguish certain facts, questions of
generality