Abstract
Fundamental rights in the Hong Kong Special Administrative Region (Hong Kong) are protected in its Basic Law and the Hong Kong Bill of Rights Ordinance (BORO). The Hong Kong Basic Law enshrines most of the BORO rights, thereby expressly conferring constitutional status on these rights. But there are a number of BORO rights that are not protected in the Basic Law. This article analyzes the cases in which the Hong Kong judiciary has addressed disputes concerning three exclusive BORO rights: (i) the right to participate in public affairs; (ii) the right to a fair hearing in civil cases; and (iii) the prohibition against cruel, inhuman, or degrading treatment or punishment. We will also explain how the courts have conferred de facto constitutional supremacy on all these statutory rights, while simultaneously providing significant leeway and decisional space for the government to craft a considered response in their remedial legislation, thereby promoting a constitutional dialogue between the judiciary and the government on rights-protection in Hong Kong.
1. Introduction
Fundamental rights in the Hong Kong Special Administrative Region (HKSAR or Hong Kong) are protected in its Basic Law and the Hong Kong Bill of Rights Ordinance (BORO).1 Before the Basic Law came into force in 1997, and prior to China’s resumption of sovereignty over Hong Kong, the BORO was passed in 1991 by the colonial government to “bring home” the rights the British government acceded to in 1976 when it ratified the International Covenant on Civil and Political Rights (ICCPR) and extended its application to Hong Kong.2 The passage of the BORO was, in particular, triggered by the violent suppression of the student demonstrators in Tiananmen Square over the summer of 1989. Specifically, section 3(2) of the BORO provided that “all pre-existing legislation that [did] not admit of a construction consistent with [the BORO was], to the extent of the inconsistency, repealed” and section 4 of the BORO stated that “[a]ll legislation enacted on or after the commencement date [of the BORO] shall, to the extent that it admits of such a construction, be construed so as to be consistent with the International Covenant on Civil and Political Rights as applied to Hong Kong.” But, significantly, a few months before China resumed sovereignty over Hong Kong, the Standing Committee of the National People’s Congress (SCNPC) decided that both provisions would no longer be adopted as laws in Hong Kong after the handover on July 1, 1997.3
Interestingly, the Hong Kong Court of Final Appeal (CFA) in the landmark decision of HKSAR v. Ng Kung Siu4 in 1999—after China’s resumption of sovereignty over the city—held that pursuant to article 39 of the Basic Law,5 legislative provisions that are inconsistent with the BORO provisions are to the extent of the inconsistency invalidated. This decision is significant for the following reason.
The Hong Kong Basic Law enshrines most of the BORO rights, thereby expressly conferring constitutional status on these rights. Some of these rights include the right to free expression, the right to assembly, the right to equality, the freedom of religious belief, and the right against arbitrary arrest and imprisonment. With regard to these rights concurrently protected in both the BORO and Basic Law, the invalidation of any rights-incompatible legislative provisions is uncontroversial as it is expressly stated that Basic Law rights prevail over conflicting statutory provisions.6
But there are a number of BORO rights that are not protected in the Basic Law. The BORO expressly protects a person’s right to a fair hearing in civil cases,7 but this right is absent from the Basic Law. Some BORO rights are more circumscribed in the Basic Law. The BORO protects a person’s right against torture and cruel, inhuman, or degrading treatment or punishment,8 but the Basic Law only prohibits torture9; there is a general right to privacy under the BORO,10 but the Basic Law only protects the privacy of one’s communication.11Ng Kung Siu’s pronouncement that any legislative provision that is inconsistent with these exclusive BORO rights is also invalidated was an implicit rejection of the legislative repeal of sections 3 and 4 of the BORO; and the CFA therein conferred quasi-constitutional status on these statutory rights too.
Since Ng Kung Siu, the Hong Kong judiciary has used the BORO to invalidate legislative provisions that conflict with these exclusive statutory rights, and each time the Hong Kong legislature has acquiesced to the decision and, where necessary, passed remedial legislation to comply with the judicial decision. Technically, it is always open to the Hong Kong legislature to resist the decisions by amending the BORO, as the content of the BORO—an ordinary statute—may be changed by a mere legislative majority. But the legislature has never done so (see Figure 1).
This article analyzes the cases in which the Hong Kong judiciary has addressed disputes concerning three exclusive BORO rights: (i) the right to participate in public affairs; (ii) the right to a fair hearing in civil cases; and (iii) the prohibition against cruel, inhuman, or degrading treatment or punishment. We will also explain how the courts have conferred de facto constitutional supremacy on all these statutory rights but at the same time have also provided significant leeway and decisional space for the government, thereby promoting a constitutional dialogue between the judiciary and the government on rights protection in Hong Kong.12
Legislation/regulation invalidated by the HKSAR courts for violating exclusive BORO rights.
At the outset, we would clarify how we use the term “dialogic” review herein. Traditionally, in liberal constitutional democracies like Canada, New Zealand, and the United Kingdom, dialogic review will often be more discursive, whereby the judicial and political branches of government engage in an interbranch collaborative conversation on constitutional meanings.13 In mature democracies, the constitutional dialogue between coordinate branches of government is more interactive: there will be regular legislative sequels and policy decisions that respond to and/or accommodate judicial rulings on rights.14 This dialectical “partnership model”15 of dialogue—where both courts and legislatures share responsibility for making judgments about constitutional values and assessing the reasonableness of their own actions in light of the other’s input16—is more commonly practiced in liberal constitutional democracies.
However, in dominant party democracies—democracies in which the same political party or coalition has been in power since decolonization or independence and will remain in power for the foreseeable future—this interbranch back-and-forth occurs less frequently. Instead, in such democracies—of which Hong Kong is one17—the dialogue that ensues is more strategic, rather than discursive, in nature.18
In dominant-party democracies, courts can only take a limited range of actions before they outrun the government’s “tolerance interval”19 as the government can respond to confrontational judicial decisions by deploying constitutional or unconstitutional means to overrule or “punish” the courts.20 While their courts are unable to successfully challenge the core interests of their governments, reform-oriented courts choose instead to strategically pursue modest pathways to constrain the “structural pathologies”21 of authoritarian politics. This form of review is still dialogic as courts in dominant-party democracies—like their counterparts in mature democracies—are still enforcing constitutional rights in a way that provides sufficient decisional space to the legislature or allows the legislature to respond in disagreement using the ordinary political process. However, what is different in dominant-party democracies is that their courts—very attentive to potential legislative backlash—regularly blunt the force of their decisions ex ante to secure ex post compliance or acquiescence from the dominant government.
This article therefore analyzes judicial prudence as a conception of constitutional dialogue. One must note that this characterization of dialogue is not wholly new. While the “dialogue” metaphor as routinely used to characterize the active interaction between courts and legislatures on rights interpretation is generally attributed to Peter Hogg and Allison Bushell,22 its lineage is much older than commonly thought. Yale law professor Alexander Bickel was the first to advocate for the judicial use of “passive virtues,”23 which include judicial techniques such as ripeness, standing, mootness, political question doctrine, etc., to facilitate a “continuing colloquy with the political institutions and with society at large”24 on constitutional rights as the issue of legal principle “remains in abeyance and ripens.”25 His prudential conception of constitutional dialogue is much more passive than how contemporary scholars would use this term.
But while Bickel would have judges promote passive constitutional dialogue by prudentially avoiding cases, this article uses Hong Kong as a case example to present an active theory of dialogic prudence when cases are actually decided: the judiciary would flex its constitutional muscles and be assertive in cases that are low stakes for government. Even for low-stakes cases, and especially in situations where the stakes are high for the government, the courts would nevertheless strategically blunt the impact of their decisions ex ante to encourage ex post compliance or acquiescence from the leviathan state.
Under the Basic Law, the Hong Kong judiciary is subject to Beijing’s oversight. The Standing Committee of the National People’s Congress (SCNPC) is empowered under the Basic Law to overrule any constitutional decision of the CFA by a legislative interpretation, which Beijing did in the very first constitutional decision handed down by the CFA.26 With a Goliath poised to countermand any perceived aggressive moves by the Hong Kong judiciary, it is unsurprising that the local judges have become more cognizant of the potential political fallout from their decisions.
But this is not to say that the courts have become politically irrelevant in Hong Kong’s constitutional landscape. The Hong Kong judiciary has built up a history of invalidating legislation since the BORO was enacted in the territory in 1991.27 Like all political practices, judicial practices are path-dependent,28 such that Hong Kong judges can appeal to history and stare decisis for continuing the practice of enforcing human rights against the Hong Kong government. Furthermore, Beijing cannot and will not reverse every decision by the CFA as it does not want to appear to be retreating from its commitment to allow the HKSAR to “exercise a high degree of autonomy and enjoy . . . independent judicial power,”29 as this would adversely impact on Hong Kong’s long-term viability as an international financial center and China’s own long-term goal of re-unifying Taiwan. The HKSAR government is similarly unable to reverse every adverse decision handed down by the courts. As the chief executive is not drawn from any political party, and with the presence of multiple political parties, independents, and corporate sectoral representatives in the Legislative Council, the HKSAR government has to constantly broker different interests among competing political forces when it seeks to pass legislation.30 While this is not difficult when the government is whipping up support for legislation that Beijing or its local affiliates consider imperative, the fragmentation31 within the Hong Kong Legislative Council and the constant filibustering within the legislative chamber limit the ability and appetite of the Hong Kong government to overrule the courts on non-core sociopolitical issues. This political impasse in turn provides the Hong Kong judiciary with significant leeway to rule against the local government on a modest scale, which the local legislature would acquiesce to if the rights were unfolded in incremental and limited ways.
Therefore, insofar as the Hong Kong judges have de facto constitutionalized a bundle of statutory rights not provided in the Basic Law, they have strategically done so in ways that do not threaten Beijing’s political control over the city or hamstring the local government’s core concerns. The creation of a constitutional right to a fair hearing in civil cases is a classic low-stakes decision.32 On electoral reform, no major electoral systemic overhauls were pursued. Instead, the judges extended voting rights writ small to non-indigenous villagers33 and disenfranchised prisoners,34 and allowed those who had been convicted of minor offenses pending appeal to stand for elections.35 But even in these lower-stakes cases, the judiciary has opened up a channel of dialogue for more public deliberation and consultation on further statutory reforms. For the higher-stakes deportation cases, while the judiciary drew a line in the sand by refusing to exempt immigration legislation and practices from the BORO’s prohibition against torture and inhuman or degrading treatment, it is noteworthy that the CFA only gave very limited directions to the government on the details on non-refoulement and granted the administration significant decisional space to devise their own remedial legislation.36
2. Constitutional order in Hong Kong before and after the handover
When Hong Kong was under colonial rule, the constitution of Hong Kong was embodied in the Letters Patent issued by the British Crown,37 which did not provide for any human rights safeguard. The year 1989 signified a turning point when student protestors in Tiananmen Square were violently suppressed by the Chinese authorities on June 4. In order to restore confidence in the rule of law and human rights protection in Hong Kong after the handover, the colonial government decided to introduce the BORO, which essentially codified under domestic law the ICCPR (subject to Reservations38) that the United Kingdom (UK) ratified and made applicable to Hong Kong in 1976. The BORO came into effect in Hong Kong on June 8, 1991. At the same time, the Letters Patent was amended to provide that no laws could restrict rights in any way that was inconsistent with the ICCPR as applied to Hong Kong.
Meanwhile, to ensure a smooth transfer of government in 1997, the Basic Law Drafting Committee (BLDC), composed of members nominated by the Chinese government, was established to draft the Basic Law. The BLDC was assisted by a Basic Law Consultative Committee, an advisory body that solicited the views of the Hong Kong people in the drafting process. After the first consultation, the first Basic Law draft was published in April 1988. Following the second round of consultation and subsequent revisions, the Basic Law was eventually finalized and promulgated by the National People’s Congress—China’s highest lawmaking body—on April 4, 1990, and was slated to come into effect on July 1, 1997.
Several months before China’s resumption of sovereignty over Hong Kong, on February 23, 1997, the SCNPC, exercising its power pursuant to article 160 of the Basic Law,39 declared that three statutory provisions in the BORO—sections 2(3),40 3,41 and 4,42 which essentially empowered courts to invalidate pre-BORO legislation which could not be construed consistently with the BORO—would no longer be adopted as laws in Hong Kong after the handover.43 Since these BORO provisions ostensibly trumped ordinary Hong Kong laws, this SCNPC decision was perceived to be an expression of China’s unyielding resolve that only the Basic Law could reign supreme over all other Hong Kong laws.
While pessimists thought that the BORO statutory regime would fall by the wayside after the handover, this worry proved to be premature. In HKSAR v. Ng Kung Siu44 in 1999, the CFA reaffirmed that pursuant to article 39 of the Basic Law,45 the BORO and the ICCPR as applied to Hong Kong would continue to be judicially enforced, even if the Letters Patent had lapsed after the handover.
Ng Kung Siu was a case concerning flag desecration. On the facts, the defendants were charged for desecrating the national and regional flags, contrary to section 7 of the National Flag and National Emblem Ordinance46 and section 7 of the Regional Flag and Regional Emblem Ordinance,47 respectively. The central issue turned on whether the above restrictions were consistent with the freedom of expression entrenched under article 27 of the Basic Law and article 16 of the BORO. The CFA eventually upheld both laws on the basis that the statutory restrictions were reasonable, taking into account the uniqueness of the national and regional flags in reinforcing national unity and territorial integrity,48 and that the restrictions were limited as they only banned one mode of expression such that the same message could be expressed via other means.49
But what is most significant is that the CFA endorsed the view that the BORO “in fact provides for the incorporation of the provisions of the ICCPR into the laws of Hong Kong”50; and to be compliant with article 39 of the Basic Law, any “restriction on [the freedom of expression] cannot contravene the provisions of the ICCPR.”51 In other words, by virtue of article 39 of the Basic Law, any statutory restriction that conflicts with the BORO—the domestic implementation of Hong Kong’s ICCPR commitments—would be deemed unconstitutional too.
Ostensibly, the CFA relied on article 39 of the Basic Law for this legal maneuver. Specifically, paragraph 1 of this article states that “the provisions of the International Covenant on Civil and Political Rights . . . as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.” Paragraph 2 of article 39 further provides that “[t]he rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.” One may note that the text of article 39 does not explicitly provide for the direct enforcement of ICCPR rights in Hong Kong or the concomitant judicial invalidation of any conflicting statutory provisions. Only those ICCPR rights concurrently protected in the Basic Law enjoy that constitutional status, and only by virtue of the supremacy clause enshrined in article 852 of the Basic Law. For those ICCPR rights not found in the Basic Law, article 39 merely prohibits any restrictions from contravening any local implementation of the ICCPR, which has been done through the BORO, an ordinary law.
The BORO is a faithful replication of those ICCPR substantive obligations acceded to by the UK government in 1976,53 which the Chinese government had agreed to abide by after the handover. But one must note that the ICCPR itself too does not provide for the judicial enforcement of these rights, nor does the ICCPR itself empower courts to invalidate any conflicting legislation. (Even today in the UK, another signatory of the ICCPR, the Supreme Court does not have the formal power to strike down legislation that is incompatible with the UK’s Human Rights Act.) Article 2 of the ICCPR merely obligates state parties to ensure that “any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.” And the remedy chosen by China after it resumed sovereignty over Hong Kong was to allow only ICCPR rights concurrently protected in the Basic Law to prevail over local legislation and remove those additional judicial powers to invalidate pre-BORO legislation for violating the BORO rights (that are not in the Basic Law)54 and interpret post-BORO legislation in a BORO-friendly manner.55
Therefore, in Ng Kung Siu, with this expansive interpretation of article 39, the CFA was attempting to claw back power it lost with the statutory repeal. One should note that repeal of these interpretative provisions in the BORO was passed by China before the handover and these legislative changes were timed to take effect when the Basic Law came into force on the HKSAR’s Establishment Day. Therefore, it is inconceivable that the CFA’s reading of Article 39 would have been what China intended when the latter unilaterally framed the Basic Law.
On a literal reading of article 39, this constitutional provision merely provides that restrictions on the rights and freedoms enjoyed by Hong Kong residents shall not contravene “[t]he provisions of the International Covenant on Civil and Political Rights . . . as applied to Hong Kong . . . and . . . implemented through the laws of the Hong Kong Special Administrative Region.” Therefore, for rights that are not concurrently protected in the Basic Law, article 39 effectively functions as a “by law” clause56 that defers the scope of their protection and extent of implementation to lawmakers to determine by ordinary legislation, in the BORO or otherwise. Hence, a textual and historical reading of article 39 would militate against an interpretation that empowers Hong Kong courts to strike down legislation that is inconsistent with BORO rights not concurrently provided in the Basic Law, especially since these very controversial BORO rules of statutory construction were firmly rejected by China even before the Basic Law took effect!
The CFA’s judicial maneuver in Ng Kung Siu had little practical impact on constitutional rights that are already protected in the Basic Law, as the supremacy clause enshrined under article 8 of the Basic Law would always deem statutory restrictions that violate Basic Law rights unconstitutional, even in the absence of the BORO. This was indeed the case in Ng Kung Siu as the CFA was therein addressing the freedom of expression, a right protected both in article 16 of the BORO and article 27 of the Basic Law. However, the CFA’s expansive reading of article 39 had momentous implications on another category of rights not at issue in this appeal, i.e. exclusive BORO rights—rights found only in the BORO and not in the Basic Law—as this move implicitly reinstated sections 2(3), 3, and 4 of the BORO, which had been removed by the SCNPC in February 1997. Henceforth, based on the CFA’s liberal reading of article 39, future courts could also rely on this constitutional provision to strike down legislation that conflicted with the exclusive BORO rights too. Furthermore, insofar as the Hong Kong courts have gone on to invalidate legislation that was passed after the passage of the BORO, the local judiciary has expanded upon its original powers conferred under section 4 of the BORO, which had previously only allowed courts to give a remedial interpretation to—but not invalidate—rights-conflicting laws enacted after the passage of the BORO.
3. Right to participate in public affairs
Article 26 of the Basic Law stipulates that “[p]ermanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law.” It is thus noteworthy that the Basic Law explicitly adopts a “by law” clause for electoral rights. In view of the fact that the methods for electing the Legislative Council members57 and the chief executive58 were works-in-progress, the Basic Law intentionally avoided constitutionalizing a fixed electoral arrangement and instead explicitly delegated these constitutional questions to future legislatures.
However, article 21 of the BORO further expands on article 26 of the Basic Law by also providing that permanent residents shall have the right “to take part in the conduct of public affairs, directly or through freely chosen representatives”; and the right “to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage.”59 Not only is the right to participate in public affairs broader in scope than the right to vote and stand for elections, article 21 of the BORO prohibits any “unreasonable restrictions” on the BORO right, which stands in contrast with article 26 of the Basic Law’s requirement that the restriction be only “in accordance with law.”
3.1. Secretary for Justice v. Chan Wah
In the New Territories, a rural part of Hong Kong, only an indigenous inhabitant—defined as “a person who was in 1898 a resident of an established village in Hong Kong or who is descended through the male line from that person”60—was traditionally entitled to vote and stand as a candidate in the Village Representatives (VRs) election. In Chan Wah,61 non-indigenous villagers challenged this electoral practice62 on the ground that it denied their right to participate in the village affairs as protected under article 21(a) of the BORO.
Noting that the VRs represent the entire village in liaising with the government, and the role they play extends beyond the village level and up to the Legislative Council,63 the CFA concluded that the VRs were engaged in the conduct of public affairs. Furthermore, since a VR “represent[s] the village as a whole (comprising both the indigenous and the non-indigenous villagers),”64 the CFA unanimously determined that the exclusion of non-indigenous inhabitants from the VRs election was an unreasonable curtailment of their article 21(a) BORO right, and was thus unconstitutional.65
But there are two problems with this chain of reasoning. First, it is noteworthy that there was no legislation governing the VRs election, as it was only a customary practice within these villages to limit voting to indigenous villagers. Given that the BORO only binds state actors,66 it is not self-evident why a disfranchised voter would have a BORO claim against his or her village. The CFA merely asserted state action on the basis that the government’s approval was needed before the elected VR could formally take office.67
Second, the CFA had relied on article 39 of the Basic Law to enforce article 21(a) of the BORO directly. But as we have discussed earlier, for rights that are not concurrently protected in the Basic Law—for which article 21(a) of the BORO is one—article 39 of the Basic Law effectively functions as a “by law” clause that defers the scope of their protection and extent of implementation to lawmakers to determine by ordinary legislation. In particular, the BORO provisions that authorized the repeal or reading-down of conflicting legislation have been removed. A textual and historical reading of article 39 of the Basic Law would also militate against an interpretation that empowers Hong Kong courts to strike down practices that are inconsistent with BORO rights not concurrently provided in the Basic Law, especially since these controversial BORO rules of statutory interpretation were repealed by China even before the constitution came into force.
In Chan Wah, the CFA essentially conferred de facto constitutional status on article 21(a) of the BORO, such that statutory rights not provided for in the Basic Law can still prevail over conflicting legislation. But the CFA was assertive herein on a low-stakes decision: village elections, which were only regulated by village customs and not legislation. The CFA was also dialogic and strategic in leaving open the remedial options the government had by merely declaring that the government could not approve any person elected as a VR under that flawed pre-existing arrangement.68 No further judicial orders were issued. The CFA’s bark was certainly worse than its bite, but this prudential maneuver allowed the government to placate the indigenous residents incensed by this decision by devising a dual system in which two VRs are now elected in each village, one representing only the indigenous residents and one for everyone in the village.69
3.2. Chan Kin Sum v. Secretary for Justice
Traditionally, prisoners were prohibited from registering as an elector in Legislative Council elections under sections 31(1)(a) and (b) of the Legislative Council Ordinance (LCO)70 and voting in such elections under sections 53(5)(a) and (b) of the LCO.71 In Chan Kin Sum,72 the applicant challenged this blanket disenfranchisement of prisoners as an unreasonable restriction of his right to vote.
The Court of First Instance (CFI) acknowledged that the electoral disenfranchisement of prisoners prevented crime by sanctioning the conduct of convicted prisoners and provided incentives for the citizenry to exercise civic responsibility. Notwithstanding the legitimate aims that the government was seeking to pursue, the Court noted that the impugned legislative ban was disproportionate as all prisoners were barred from voting, regardless of the nature and severity of the offenses or even the length of the custodial sentences.73 Even prisoners on suspended sentences or released on parole were barred from voting. Nevertheless, the Court was willing to suspend its declaration of invalidity for about seven months as the learned judge considered that the legislature would “legitimately require and deserve a reasonable period of time to work out a replacement arrangement, whatever it may be.”74 On the facts, the Court refused to determine what type of voting restrictions would pass constitutional muster or “where the cut-off line should be drawn and how it should be drawn”75 as it is the function of the legislature and not “the function of the courts to say what would constitute reasonable restrictions in Hong Kong.”76 This decision was therefore dialogic as the Court remanded the electoral issue to the legislature such that it could “reply to the court’s decision with one of a wide range of constitutional options available to it.”77
It is noteworthy that the CFI’s grant of the suspension order was not merely driven by a judicial reluctance to opine on hypothetical alternatives or specify the precise threshold of legality. Instead, the Court was concerned that if a suspension order was not granted, the default judicial remedy would be to declare the current electoral disenfranchisement of prisoners wholly unconstitutional; and if there were a by-election in the interim, the government “will have no choice but to allow all prisoners to vote, including those who would not have been allowed to vote if new legislation could have been enacted in time.”78 According to the Court, such a scenario—where rights were excessively conferred—would equally be “a threat to the rule of law”79 and the judiciary should not facilitate this. Therefore, the issue of a delayed declaration of invalidity was also strategic as it gave the legislature time and political space to reclaim the electoral field.
Interestingly, in 2009, the Hong Kong Legislative Council, after a series of public consultations and deliberations, responded by repealing all restrictions on prisoners’ right to vote, thus achieving a result that went beyond what was mandated in Chan Kin Sum.
Chan Kin Sum exemplifies the variety of constitutional dialogue we typically witness in mature liberal democracies. There is an active interaction between courts and legislatures on rights interpretation: the judiciary issues a decision that leaves open a multitude of remedial options and the legislative responds after deliberation with a rights-friendly legislative sequel. But one should note that prisoners’ right to vote is a non-issue for the Hong Kong government as their enfranchisement would not affect any election result, nor would it erode Beijing’s control over the city. It is telling that the Hong Kong government chose not to pursue an appeal despite losing only before the CFI.
3.3. Wong Hin Wai v. Secretary for Justice
The applicants herein80 were on bail pending appeal against their convictions and sentences of imprisonment for public order offenses they had committed. Under section 39(1)(b)(i) of the LCO,81 they were disqualified from standing for the Legislative Council election unless they had finished serving their sentences before the end of the nomination period. The central issue of the case turned on whether this electoral restriction constituted an unlawful curtailment of their right to stand for election, as protected under article 21(a) of the BORO.
It is important to note that this blanket ban was actually introduced in 1997 by the Provisional Legislative Council (PLC).82 (The PLC had a term limit of one year and it was tasked by China to take charge of Hong Kong’s legislative affairs until the first session of the Legislative Council was elected in 1998.) Before 1997, electoral disqualification was only applicable to persons whose unserved prison sentence exceeded three months.83 The rationale for the change was disclosed in the Memorandum on Review of the Electoral Provisions Ordinance prepared by the Constitutional Affairs Bureau in 1997, which suggested that this “3-month threshold” should be tightened to prevent escaped convicts from holding an office in the legislature.84
In view of this rationale, the CFI held that there was a disconnect between barring escaped convicts from elections and banning all persons with unserved jail terms from electoral office. In essence, the electoral restriction was so overbroad that it targeted not only escaped convicts as originally intended by the government but also the applicants who were on bail pending their appeals,85 and the law was therefore found to be unconstitutional.
While the impugned electoral provision on its face applied to all sentences of imprisonment—regardless of length—the CFI was also quick to narrow the breadth of its decision. According to the Court, for convicts subject to prison sentence exceeding three months, they were already disqualified from office under a separate electoral provision,86 and that statutory provision was constitutional. Therefore, the invalidation of the electoral law in question would only benefit those disqualified candidates whose prison sentences were three months or less!87
After this decision, the Hong Kong government conducted a public consultation and explored various other options for electoral reform.88 In particular, the Court had also raised concerns, though it did not decide this point, that section 39(1)(d)89 of the LCO was also constitutionally problematic as it disqualifies persons who serve short prison sentences between the commencement of the nomination period and the election date, and the politicians are barred even if they would be released by the time the new term of the Legislative Council commences. But the government rejected this judicial suggestion.90 Nevertheless, in view of the fact that the CFI had strategically narrowed the policy impact of the invalidated law, the government also abandoned attempts to revise section 39(1)(b)(i) of the LCO and allowed that judicial ruling to stand.
Wong Hin Wai is an exemplary illustration of how the Hong Kong judiciary devised a dialogic strategy to blunt the impact of its decision. Whilse ostensibly striking down an entire electoral provision that prohibited persons with unserved jail terms from seeking electoral office, it concurrently narrowed the breadth of its decision by emphasizing that convicts subject to prison sentences exceeding three months were already disqualified from office under a separate electoral law. By ex ante limiting the policy impact of its decision, the Court prudentially and dialogically secured ex post acquiescence from the government on this (progressive albeit limited) piece of electoral reform.
4. Right to a fair hearing in civil cases
While the Basic Law concurrently protects many due process rights found in the BORO, the BORO in addition safeguards some rights exclusively. The right to a fair trial guaranteed under article 87 of the Basic Law is an example.91 It is noteworthy that this Basic Law right is only applicable to criminal cases. Nevertheless, a right to a fair hearing in civil cases is found in article 10 of the BORO, which provides that, “[i]n the determination . . . 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.”
4.1. Lam Siu Po v. Commissioner of Police
In Lam Siu Po,92 a police constable contended that a blanket ban on professional legal representation at his disciplinary hearing, as prohibited under regulations 9(11)93 and 9(12)94 of the Police (Discipline) Regulations, violated his right to a fair hearing under article 10 of the BORO.
The CFA unanimously held that the disciplinary proceedings in the present case did amount to a determination of the constable’s civil rights and obligations as the offence for which he was charged was “normally terminatory,”95 and hence, he should have the right to a fair hearing.
The CFA’s legal maneuvers herein are noteworthy for two main reasons. First, the Court directly constitutionalized article 10 of BORO, even though the text and history of Article 39 of the Basic Law would militate against such a development, as we have discussed extensively above. Second, even if article 39 is indeed the constitutional source for the direct judicial incorporation and enforcement of Hong Kong’s binding ICCPR obligations, the Human Rights Committee (HRC) established under the ICCPR in its General Comment No. 32 had stated that article 14(1) of the ICCPR—on which article 10 of BORO is based—did not apply to the termination of civil servants for disciplinary reasons!96 Therefore, even as the CFA chose to directly enforce Hong Kong’s ICCPR obligations on a person’s right to a fair hearing in a suit at law, it equally dismissed the HRC’s authoritative comments on the Article’s regulatory scope as “[less] principled.”97
Nevertheless, while the CFA expanded the access of civil servants to judicial tribunals beyond the scope of the ICCPR but in its name, the Court dialogically limited the potential breadth of its decision. In determining what a fair hearing under article 10 of the BORO would require, the Court opined that common law principles of procedural fairness would be applied. In the present case, the blanket exclusion of legal representation by the relevant subsidiary legislation was deemed unfair, in light of the severity of the charge and the potential penalty, and the impugned provisions were thus invalidated.98 In the end, the CFA only held that fairness would require the disciplinary tribunal be given the discretion to permit legal representation in some circumstances99—a very circumscribed injunction on the government.
Lam Siu Po is a significant example where the CFA conferred de facto constitutional status on the exclusive BORO right to a fair hearing in civil cases, and invalidated a restriction on this basis. But as an exclusive BORO right is merely statutory in nature, the legislature was technically free to disagree with the Court’s decision by amending the BORO through the ordinary legislative process and excluding civil servants in such disciplinary hearings from the ambit of this right, if it so chose. More important, as the CFA merely asserted that this constitutional right to a fair hearing would only encompass common law principles of procedural fairness, the disciplinary tribunal is only foisted with a discretion to permit legal representation in some circumstances. By prudentially imposing a very limited injunction on the government, the CFA was able to dialogically cajole the government into accepting legal representation on a discretionary basis in future police disciplinary hearings.
4.2. Koon Wing Yee v. Insider Dealing Tribunal
In Koon Wing Yee,100 the defendants were charged with insider dealing offenses before the Insider Dealing Tribunal. A central issue before the CFA was whether such Tribunal proceedings should be viewed as a civil determination or a criminal charge.
The government took the view that insider dealing was not a criminal offense and that such Tribunal proceedings were not criminal in nature. According to the government, this is because section 23(1)(c) of the Securities (Insider Dealing) Ordinance (SIDO) only authorized the Tribunal to impose “a penalty of an amount not exceeding ‘300%’ the amount of any profit gained or loss avoided by any person as a result of the insider dealing,”101 but not a term of imprisonment. The government further buttressed its submission by relying on legislative history: when the Securities (Insider Dealing) Bill was debated in the legislature,102 the Financial Secretary expressly stated that “insider dealing should not for the present be made a criminal offence.”103 Notwithstanding the legislative history, the CFA held that the law’s substance was more important than the form, and since insider dealing amounted to a very serious market misconduct and the penalty imposed was “punitive and deterrent,”104 insider dealing amounted to a criminal offense and the proceedings before the Insider Dealing Tribunal were criminal in nature.105
Once the proceedings before the Insider Dealing Tribunal were deemed criminal in nature, it naturally followed that section 33(6) of the Securities and Futures Commission Ordinance, which compelled persons under investigation to answer questions posed to them under the said legislation, would violate their right to a fair hearing106 and their right against self-incrimination.107
The consequence of such a finding should lead to the immediate invalidation of the impugned section 33(6). But this would have meant that the government would also lose these investigatory powers under the said Ordinance. In an extraordinary move, the CFA chose to accede to the government’s request of invalidating section 23(1)(c) of the SIDO instead—the penalty provision that authorized the disgorgement of 300 percent of the defendants’ profits.
The sheer novelty of this decision was not lost on the CFA. As noted by the Court:
The declaration sought is novel because, if made, it would result in the striking down of a legislative provision which does not itself infringe the BOR. And no case has been cited in which a court has held a non-infringing statutory provision to be invalid, thereby leaving on foot the statutory provisions which violate Bill of Rights provisions, as a means of rendering the statute compliant with Bill of Rights requirements.108
Had it not been for the punitive nature of section 23(1)(c), the proceedings would not have acquired a “substantially criminal character,”109 but this penalty provision was not in itself unconstitutional. The unconstitutional portion of the law was the concomitant powers on the government to compel testimony in a criminal proceeding. But in an attempt to foster a dialogic compromise with the government, the CFA acceded to the former’s request of voiding the penalty provision instead, which was deemed constitutional in itself, such that the government would merely lose its powers of disgorgement but could retain its investigatory powers to compel testimony, the government’s preferred sacrifice.110 Furthermore, this judicial maneuver also had the effect of preserving the prior findings made by the Insider Dealing Tribunal against the defendants in question, save the orders for disgorgement of gain.111
Koon Wing Yee was certainly an extraordinary decision. While the CFA determined that the defendants would enjoy criminal due process rights when they were charged with insider dealing offenses, it also brokered a dialogic compromise with the government by acceding to the government’s unusual request for the courts to invalidate the “disgorgement” penalty provision—which was constitutional in itself—so that the government could retain its investigatory powers to compel testimony and preserve the other prior findings made by the Insider Dealing Tribunal against the defendants in question. While this result might be legally problematic, the CFA was clearly trying to mediate a win-win solution and forge a constitutional “equilibrium”112—a common feature of constitutional dialogue—which more constitutional participants, no less the government, could accept.
5. Prohibition against cruel, inhuman, or degrading treatment or punishment
Article 3 of the BORO113 expressly prohibits torture, as does Basic Law,114 but it exclusively extends the prohibition to cruel, inhuman, or degrading treatment or punishment (CIDTP). More significantly, sections 5(1)115 and 5(2)(c)116 of the BORO provide that this right conferred under article 3 is non-derogable even in times of a “public emergency which threatens the life of the nation.” Notwithstanding section 5, section 11 of the BORO also provides that, “[a]s regards persons not having the right to enter and remain in Hong Kong, [the BORO] does not affect any immigration legislation governing the entry into, stay in and departure from Hong Kong, or the application of any such legislation.” This ostensible tension between the absolute nature of the article 3 right and the express ouster of the BORO over immigration cases was a matter that soon came before the CFA.
5.1. Ubamaka v. Secretary for Security
In Ubamaka,117 a deportation order was issued against the applicant after he had finished serving his prison sentence in Hong Kong for drug trafficking. He argued in response that the deportation order should be quashed as he could face re-prosecution and punishment for the same conduct back home in Nigeria, and this would violate the BORO’s prohibition against CIDTP.
Interestingly, in addressing the apparent conflict between sections 5 and 11 of the BORO, the CFA decided that “precedence”118 must be given to the absolute character of the article 3 right; therefore “s.11 must be read as qualified by s.5”119 and section 11 would only apply in immigration cases “except insofar as the non-derogable and absolute rights protected by BOR art. 3 are engaged.”120
To benefit from this article 3 protection, the CFA further held that the claimant must demonstrate that “(i) the ill treatment which he would face if expelled attains what has been called ‘a minimum level of severity’ and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment.”121
This decision is groundbreaking as far as the CFA, for the first time, read down an ouster clause pertaining to the BORO rights and indirectly conferred de facto constitutional status on the prohibition against CIDTP, short of torture, such that the government had to accord non-refoulement protection on this category of claimants in the future too.
Nevertheless, while the CFA refused to give effect to section 11 of the BORO, which explicitly authorized any immigration legislation to derogate from the prohibition against CIDTP, the Court strategically and dialogically blunted the impact of its decision by setting a “a very high threshold”122 that has to be surmounted before any future claimant can actually benefit from this CIDTP protection. On the facts, the CFA actually overruled the lower court’s ruling that deportation would constitute CIDTP, and instead emphasized that the claimant’s “severe mental and psychological blow”123 at the prospect of facing another trial and imprisonment for a sentence already served would not come “anywhere near to meeting the threshold requirements”124 for establishing CIDTP.
Ubamaka concerned the deportation of foreign nationals with criminal records—a typical high-stakes decision for the Hong Kong government. Nevertheless, while the CFA drew a line in the sand by refusing to exempt immigration practices from the BORO’s ban on torture and CIDTP, and conferred constitutional protection on these statutory rights, the CFA also dialogically blunted the potential impact of its decision by raising the bar for a successful CIDTP claim, thereby assuring the government that it was not opening the floodgates to a litany of unmeritorious claims.
5.2. C v. Director of Immigration
C125 concerns a challenge by foreign nationals claiming refugee status protection in Hong Kong on the ground that they, if repatriated, would face persecution in their home countries. One may note that neither the UK (prior to 1997) nor the Chinese government had applied the Convention Relating to the Status of Refugees (1951) (the Refugee Convention) to Hong Kong. But, pursuant to the Memorandum of Understanding between the United Nations High Commissioner for Refugees (UNHCR) and the HKSAR government, the latter would, in unqualified terms, second the decision of the UNHCR, and the UNHCR would take “full responsibility”126 when it decides whether the claimants should be repatriated back to their home countries or resettled in third-party nations, in accordance with the procedural standards for Refugee Status Determination (RSD).127
On the facts, the applicants, whose refugee status had been denied, argued that the Director of Immigration, insofar as he had mechanically seconded the UNHCR’s RSD decision, had failed to satisfy the requisite high standards of fairness required, given the gravity and importance of the decision.
The CFA responded in agreement with the applicants. In failing to form its independent view on the correctness of the UNHCR’s determinations, the Immigration Department’s practice fell short of the requisite “high standards of fairness,”128 especially when the UNHCR’s determination was adverse to the claimants. Therefore, it was incumbent on the director to make an independent final decision, although he may give weight to the UNHCR’s RSD determination.129 While the claimants did not explicitly allege a BORO violation, concerns that the applicants could face torture and CIDTP if repatriated permeated the CFA’s decision.130
Even though the CFA compelled the Director of Immigration to independently review the UNHCR’s RSD determination, especially if the determination was adverse to the claimants, the Court openly dialogued with the government on why this obligation was neither new nor onerous. First, the CFA pointed out that the director—in his case filed before the Court—had actually professed that he did independently consider each deportation case on its own merits, but this statement was “not supported by evidence.”131 Second, the Court agreed that the director is “entitled to give weight”132 to a UNHCR’s RSD determination and the CFA was in no way questioning the government’s policy of not allowing asylum seekers to re-settle in Hong Kong.133 Therefore, even if repatriation was foreclosed, the government could legitimately pursue resettlement in third-party nations. Finally, the CFA also nudged the government to introduce a unified screening process for all torture, CIDTP, and refugee claimants:
The UNHCR, the Bar Association and the Law Society have advocated an unified and efficient system consisting of one domestic screening exercise covering torture, CIDTP and refugee claims to avoid duplication and to reduce unmeritorious and protracted claims. Presently, claims could be made sequentially to maximize delay. Their suggestion merits careful consideration.134
After the C decision, the Hong Kong government introduced a Unified Screening Mechanism (USM) to process future non-refoulement claims.135 In response to the CFA’s concern that the government should not unconditionally delegate its duties to a third party, the Immigration Department, in lieu of the UNHCR, would now take up the responsibility of processing these claims in an independent and impartial manner. Moreover, in addition to establishing torture as a basis for resisting refoulement,136 claimants may now also seek non-refoulement protection on the two new grounds articulated in Ubamaka and C: if repatriated, (i) the claimant faces a genuine and substantial risk of being subjected to ill treatment that reaches a minimum level of severity137 or (ii) the claimant faces a persecution risk.138 It is noteworthy that the USM was not mandated by the CFA. The Court merely suggested that its introduction merits “careful consideration.”139 But by prudentially pulling its punches, the CFA was able to successfully persuade the Hong Kong government to implement a more humanitarian and efficient regime to process non-refoulement claims.
6. Conclusion
After China’s resumption of sovereignty over Hong Kong in 1997, the fundamental jurisprudential conundrum the CFA faces is how it can preserve the judiciary as a separate and independent branch of government while quelling any concerns from the Mainland that Hong Kong courts, if left unleashed, would turn the Island into another “renegade province” in the south.
If the Hong Kong courts are too aggressive in enforcing human rights against the government, they might only incur a backlash that takes the form of an Interpretation from the SCNPC or even an amendment of the Basic Law. On the other hand, if they are too indulgent toward the HKSAR government, the Basic Law would be reduced to a mere hollow shell that only protects constitutional rights on paper but not in practice. In light of these political realities, it is thus unsurprising that Hong Kong judges have been strategic and dialogic in addressing the human rights disputes that had come before them.140
While the Hong Kong judges have de facto constitutionalized a bundle of statutory rights not provided in the Basic Law, they have also enforced those rights in low-stakes cases which the government would tolerate or left sufficient space for the legislature to devise their own remedial response. The extension of voting rights writ small to village elections, disenfranchised prisoners,141 and those convicted of minor offences142 is a classic example. Furthermore, even as the CFA has expanded the right to a fair hearing to civil cases, the Court has sugar-coated the bitter pill by only imposing soft administrative norms on the government143 and even acceded to the government’s request of invalidating the penalty clause, which was constitutional in itself, so that the adverse factual findings made against the defendants could be preserved.144 For the higher-stakes deportation cases, while the judiciary drew a line in the sand by refusing to exempt immigration legislation and practices from the BORO’s prohibition against torture and CIDTP, it is noteworthy that the CFA blunted the potential impact of its decision by raising the bar for a successful CIDTP claim145 and nudged (but not compelled) the government to introduce a unified screening process for all torture, CIDTP, and refugee claimants.146
This article has sought to demonstrate how the Hong Kong courts have devised successful strategies to pursue what we have termed an active theory of dialogic prudence. As the courts actively resolve constitutional controversies, the judiciary consciously mediates the views of the various stakeholders in the constitutional conversation, brokering political compromises while mindful of the views of the ruling government backed by Beijing. The constitutional dialogue that takes place between the courts and the legislature in Hong Kong may not be as interactive or dialectical as we have seen in the West, but judicial prudence as underscored by Alexander Bickel is a dialogic virtue, just as the judicial mediation of diverse viewpoints is one too.147 To succeed, courts must be pragmatic and contextual: judges are attentive to the “complexities of actual institutions”148 while actively advancing a vision of rights that can endure. Therefore, the judicial exercise of active judicial prudence is also functionally equivalent to other weak-form judicial review and its constitutional cousins in Asia149 where courts calibrate the strength of their review to accommodate political exigencies.
Exclusive BORO rights in Hong Kong may have been given de facto constitutional force in the territory, but insofar as the courts have created opportunities for institutional collaboration and compromise between the co-equal branches of government, their incremental and prudential enforcement has enhanced rights in ways that encourage governmental acquiescence and compliance.
Footnotes
(Cap. 383).
See Richard Swede, One Territory—Three Systems? The Hong Kong Bill of Rights, 44 Int’l & Comp. L.Q. 358 (1995).
Decision of the Standing Committee of the National People’s Congress on Treatment of the Laws Previously in Force in Hong Kong in accordance with article 160 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (adopted at the Twenty-Fourth Session of the Standing Committee of the Eighth National People’s Congress on February 23, 1997).
(1999) 2 H.K.C.F.A.R. 442 (Hong Kong Court of Final Appeal).
Article 39 of the Basic Law reads: “The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”
Basic Law, art. 8.
BORO, art. 10.
BORO, art. 3.
Basic Law, art. 28.
BORO, art. 14.
Basic Law, art. 30.
Po Jen Yap, Constitutional Dialogue in Common Law Asia (2015).
Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (2016).
Matthew Palmer, Constitutional Dialogue and the Rule of Law, 47 Hong Kong L.J. 531, 532 (2017).
Christine Bateup, The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue, 71 Brook. L. Rev. 1109, 1168–1174 (2006).
Id. at 1169; Janet L. Hiebert, Charter Conflicts: What Is Parliament’s Role? 52 (2002).
Since the establishment of the HKSAR, an informal coalition of political parties and independent legislators that usually supports the agenda of the Hong Kong executive government (the pro-establishment camp) has been able to command an overall majority of the seats in the Legislative Council.
We are grateful to an anonymous reviewer for this point.
Lee Epstein, Jack Knight, & Olga Shvetsova, The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government, 35 Law & Soc’y Rev. 117, 128 (2001); Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe 23–24 (2000).
Yap,supra note 12, at 78.
Guy-Uriel E. Charles, Democracy and Distortion, 92 Cornell L. Rev. 601, 604 (2006).
Peter Hogg & Allison Bushell, The Charter Dialogue Between the Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All), 35 Osgoode Hall L.J. 75 (1997).
Alexander Bickel, The Least Dangerous Branch 111 (1962).
Id. at 240.
Id. at 71.
On June 26, 1999, the SCNPC issued its First Interpretation under the Basic Law and overruled the CFA’s decision in Ng Ka Ling v. Director of Immigration, (1999) 2 H.K.C.F.A.R. 4, which exempted Mainland children born to Hong Kong Permanent Residents from obtaining the requisite immigration permits before they could acquire the right of abode in Hong Kong.
Yash Ghai, Sentinels of Liberty or Sheep in Woolf’s Clothing? Judicial Politics and the Hong Kong Bill of Rights, 60 Mod. L. Rev. 459 (1997).
Alec Stone Sweet, Path Dependence, Precedent, and Judicial Power, inOn Law, Politics and Judicialization 112 (Martin Shapiro & Alec Stone Sweet eds., 2002).
Basic Law, art. 2.
Brian Fong, Executive-Legislative Disconnection in Post-colonial Hong Kong, 1 China Perspectives 5, 12 (2014). See also Stephen Gardbaum, Political Parties, Voting Systems, and the Separation of Powers, 65 Am. J. Comp. L. 229 (2017).
Jermain T. M. Lam, Political Decay in Hong Kong after the Occupy Central Movement, 42 Asian Aff.: An Am. Rev. 99, 112 (2015).
Lam Siu Po v. Commissioner of Police, (2009) 12 H.K.C.F.A.R. 237 (Hong Kong Court of Final Appeal).
Secretary for Justice v. Chan Wah, (2000) 3 H.K.C.F.A.R. 459 (Hong Kong Court of Final Appeal).
Chan Kin Sum v. Secretary for Justice, [2009] 2 H.K.L.R.D. 166 (Hong Kong Court of First Instance).
Wong Hin Wai v. Secretary for Justice, [2012] 4 H.K.L.R.D. 70 (Hong Kong Court of First Instance).
C v. Director of Immigration (2013), 16 H.K.C.F.A.R. 280 (Hong Kong Court of Final Appeal).
See generallyNorman Miners, The Government and Politics of Hong Kong ch. 5 (1995); Peter Wesley-Smith, Constitutional and Administrative Law in Hong Kong ch. 2 (1995).
Part III of the BORO provides a number of reservations to the application of the ICCPR in Hong Kong. Two relevant reservations for the current purpose are section 11 (immigration legislation) and section 13 (executive and legislative councils) of the BORO. Section 11 of the BORO reads: “As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.” Section 13 of the BORO reads: “Article 21 [the right to participate in public life] does not require the establishment of an elected Executive or Legislative Council in Hong Kong.”
The SCNPC has the power under article 160 of the Basic Law to declare that certain provisions of the ordinances and subordinate legislation in force in Hong Kong before the handover to be in contravention of the Basic Law and that those provisions are not adopted as the laws of Hong Kong. Article 160 of the Basic Law reads: Upon the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee of the National People’s Congress declares to be in contravention of this Law. If any laws are later discovered to be in contravention of this Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by this Law.
Section 2(3) of the BORO read: “In interpreting and applying this Ordinance, regard shall be had to the fact that the purpose of this Ordinance 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, and for ancillary and connected matters.”
Section 3 of the BORO read: (1) All pre-existing legislation that admits of a construction consistent with this Ordinance shall be given such a construction. (2) All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed. (3) It is hereby declared to be the intention of the legislature that the provisions of this Ordinance, including the guarantees contained in the Bill of Rights, apply to all legislation, whether that legislation affects legal relations between the Government, public authorities and private persons, or whether it affects only relations between private persons.
Section 4 of the BORO read: “All legislation enacted on or after the commencement date shall, to the extent that it admits of such a construction, be construed so as to be consistent with the International Covenant on Civil and Political Rights as applied to Hong Kong.”
The SCNPC, pursuant to its power under article 160 of the Basic Law, passed the Decision of the SCNPC on Treatment of the Laws Previously in Force in Hong Kong in accordance with article 160 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (adopted at the Twenty-Fourth Session of the Standing Committee of the Eighth National People’s Congress on February 23, 1997).
(1999) 2 H.K.C.F.A.R. 442 (Hong Kong Court of Final Appeal).
See supra note 5.
Instrument A401. Section 7 of the National Flag and National Emblem Ordinance reads: “A person who desecrates the national flag or national emblem by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 3 years.”
Instrument A602. Section 7 of the Regional Flag and Regional Emblem Ordinance reads: “A person who desecrates the regional flag or regional emblem by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable (a) on conviction on indictment to a fine at level 5 and to imprisonment for 3 years; and (b) on summary conviction to a fine at level 3 and to imprisonment for 1 year.”
Ng Kung Siu, (1999) 2 H.K.C.F.A.R. at 461B-E.
Id. at 456E-F.
Id. at 455D-E.
Id. at 455G.
Article 8 of the Basic Law reads: “The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.”
See supra note 38.
BORO, § 3(2).
BORO, § 4.
Rosalind Dixon & Tom Ginsburg, Deciding Not to Decide: Deferral in Constitutional Design, 9(3–4) Int’l J. Const. L. 636 (2011).
Basic Law, art. 68.
Basic Law, art. 45.
BORO, art. 21(a).
Government Rent (Assessment and Collection) Ordinance (Cap. 515), § 2.
Secretary for Justice v. Chan Wah, (2000) 3 H.K.C.F.A.R. 459 (Hong Kong Court of Final Appeal).
In 1994, Heung Yee Kuk (a statutory advisory body representing the interests of the indigenous inhabitants) and the District Offices in the New Territories (statutory bodies responsible for monitoring and administering the affairs in the New Territories) jointly enacted a set of non-legally binding guidelines for VRs election which were known as the Model Rules. However, the Model Rules were for reference only and the precise VRs electoral arrangement of a village was subject to the decision of that village’s rural committee. For details, see Chan Wah v. Hang Hau Rural Committee, [2000] 1 H.K.L.R.D. 411, at 423I–424C (Hong Kong Court of Appeal).
Chan Wah, (2000) 3 H.K.C.F.A.R. at 473G-I.
Id. at 474F.
Id. at 474G.
Section 7(1) of the BORO reads: “This Ordinance binds only-(a) the Government and all public authorities; and (b) any person acting on behalf of the Government or a public authority.”
Chan Wah, (2000) 3 H.K.C.F.A.R. at 471B.
Id. at 478G-I.
Rural Representative Election Ordinance (Cap. 576).
(Cap. 542). Sections 31(1)(a) and (b) of the LCO read: “A natural person is disqualified from being registered as an elector for a constituency if the person (a) has, in Hong Kong or any other place, been sentenced to death or imprisonment (by whatever name called) and has not either (i) served the sentence or undergone such other punishment as a competent authority may have substituted for the sentence; or (ii) received a free pardon; or (b) on the date of application for registration, is serving a sentence of imprisonment.”
Sections 53(5)(a) and (b) of the LCO read: “An elector is also disqualified from voting at an election if the elector (a) has, in Hong Kong or any other place, been sentenced to death or imprisonment (by whatever name called) and has not either (i) served the sentence or undergone such other punishment as a competent authority may have substituted for the sentence; or (ii) received a free pardon; or (b) on the date of the election, is serving a sentence of imprisonment.”
[2009] 2 H.K.L.R.D. 166 (Hong Kong Court of First Instance).
Id., ¶¶ 112, 116.
Chan Kin Sum Simon v. Secretary of Justice, [2009] H.K.E.C. 393 (Hong Kong Court of First Instance), ¶ 79.
Chan Kin Sum, [2009] 2 H.K.L.R.D. 166, ¶ 165.
Id.
Kent Roach, Remedial Consensus and Dialogue under the Charter: General Declarations and Delayed Declarations of Invalidity, 35 U. Brit. Colum. L. Rev. 211, 219 (2002).
Chan Kin Sum Simon, [2009] H.K.E.C. 393, ¶ 80.
Id., ¶ 84.
Wong Hin Wai v. Secretary for Justice, [2012] 4 H.K.L.R.D. 70 (Hong Kong Court of First Instance).
Section 39(1)(b)(i) of the LCO read: “A person is disqualified from being nominated as a candidate at an election, and from being elected as a Member, if the person has, in Hong Kong or any other place, been sentenced to death or imprisonment (by whatever name called) and has not either served the sentence or undergone such other punishment as a competent authority may have been substituted for the sentence.”
When the Preparatory Committee—the transition team established by China on January 26, 1996—was preparing for the establishment of the first HKSAR government, it decided that the first session of the Legislative Council should not convene with those existing members under the British administration. The PLC was set up with members appointed by China in December 1996 and came into operation in 1997 to review and enact legislation (electoral law included) for an interim period post-handover. See generally Johannes Chan, From Colony to Special Administrative Region, inLaw of the Hong Kong Constitution (Johannes Chan & C. L. Lim eds., 2015).
Section 21(1)(c) of the now-repealed Legislative Council (Electoral Provisions) Ordinance 1985 read: “A person shall be disqualified from being nominated as a candidate in an election or holding office as an elected Member if he has in Hong Kong or any other place been sentenced to death or imprisonment (by whatever name called) for a term exceeding three months and has not either suffered the punishment to which he was sentenced or such other punishment as may by competent authority have been substituted therefor or received a free pardon.”
Wong Hin Wai, [2012] 4 H.K.L.R.D. 70, ¶ 57.
Id., ¶ 59.
LCO, § 39(1)(e).
Wong Hin Wai, [2012] 4 H.K.L.R.D. 70, ¶ 86.
Constitutional and Mainland Affairs Bureau, Consultation Paper on Disqualification of Candidates with Unserved Prison Sentences and other Related Matters, July 21, 2014, ¶¶ 3.10, 4.08.
Section 39(1)(d) of the LCO reads: “A person is disqualified from being nominated as a candidate at an election, and from being elected as a Member, if the person on the date of nomination, or of the election, is serving a sentence of imprisonment.”
See Constitutional and Mainland Affairs Bureau, Results of the Public Consultation on Disqualification of Candidates with Unserved Prison Sentences and other Related Matters and Proposed Way Forward, November 17, 2014, LC Paper No. CB(2)267/14–15(03), ¶¶ 7–9.
Article 87 of the Basic Law reads: “Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs.”
Lam Siu Po v. Commissioner of Police, (2009) 12 H.K.C.F.A.R. 237 (Hong Kong Court of Final Appeal).
Regulation 9(11) of the Police (Discipline) Regulations (Cap. 232A, Sub. Leg) read: “A defaulter [i.e. a police officer charged with a disciplinary offence] may be represented by (a) an inspector or other junior police officer of his choice; or (b) any other police officer of his choice who is qualified as a barrister or solicitor, who may conduct the defence on his behalf.”
Regulation 9(12) of the Police (Discipline) Regulations read: “Subject to paragraph (11), no barrister or solicitor may appear on behalf of the defaulter.”
Lam Siu Po, (2009) 12 H.K.C.F.A.R. 237, ¶ 93.
United Nations Human Rights Committee, General Comment No. 32, Article 14, Right to Equality Before Courts and Tribunals and to Fair Trial, August 23, 2007, CCPR/C/GC/32, ¶ 16.
Lam Siu Po, (2009) 12 H.K.C.F.A.R.237, ¶ 90.
Id., ¶ 147.
Id., ¶ 142.
Koon Wing Yee v. Insider Dealing Tribunal, (2008) 11 H.K.C.F.A.R. 170 (Hong Kong Court of Final Appeal).
SIDO (Cap. 395), § 23(1)(c) (now repealed).
See Legislative Council Secretariat, Official Report of Proceedings (1989–1990), July 25, 1990, at 74.
Koon Wing Yee, (2008) 11 H.K.C.F.A.R. 170, ¶ 40.
Id., ¶ 49.
Id., ¶ 50.
BORO, art. 10.
BORO, art. 11(2)(g).
Koon Wing Yee, (2008) 11 H.K.C.F.A.R. 170, ¶ 110.
Id., ¶ 115.
Id., ¶ 117.
Id.
Bateup, supra note 15, at 1157–1160.
Article 3 of the BORO reads: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
Article 28 of the Basic Law reads: “The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.”
Section 5(1) of the BORO reads: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, measures may be taken derogating from the Bill of Rights to the extent strictly required by the exigencies of the situation, but these measures shall be taken in accordance with law.”
Section 5(2)(c) of the BORO reads: “No measure shall be taken under subsection (1) that derogates from articles 2, 3, 4(1) and (2), 7, 12, 13 and 15.”
Ubamaka v. Secretary of Security, (2012) 15 H.K.C.F.A.R. 743 (Hong Kong Court of Final Appeal).
Id., ¶ 115.
Id.
Id. (emphasis in the original).
Id., ¶ 172.
Id.
Id., ¶ 182.
Id.
C v. Director of Immigration, (2013) 16 H.K.C.F.A.R. 280 (Hong Kong Court of Final Appeal).
Id., ¶ 53.
RSD is a UNHCR’s mandate which stipulates a set of legal procedures for a national government or UNHCR to determine whether a person seeking asylum protection from a nation state is regarded as a refugee under the Refugee Convention. See UNHCR, Procedural Standards for Refugee Status Determination under UNHCR’s Mandate, September 1, 2005.
C, (2013) 16 H.K.C.F.A.R. 280, ¶¶ 45, 97.
Id., ¶¶ 55–56.
Id., ¶¶ 8–10, 43–45.
Id., ¶ 95.
Id., ¶ 55.
Id., ¶ 49.
Id., ¶ 50.
Information Services Department, Commencement of Unified Screening Mechanism for Claims for Non-refoulement Protection, February 7, 2014.
See Section 37U(1) in Part VIIC of the Immigration Ordinance (Cap. 115).
Immigration Department, Notice to Persons Making a Non-refoulement Claim, April 2014, ¶ 10.
A claimant faces a persecution risk if “(a) he, owing to well-founded fear of being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country; and, (b) his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion should he be expelled or returned to the frontiers of a Risk State.” Id., ¶ 13 (emphasis and footnotes omitted).
C, (2013) 16 H.K.C.F.A.R. 280, ¶ 50.
Po Jen Yap, 10 Years of the Basic Law: The Rise, Retreat and Resurgence of Judicial Power in Hong Kong, 36 Comm. L. World Rev. 166 (2007).
Chan Kin Sum, [2009] 2 H.K.L.R.D.166.
Wong Hin Wai, [2012] 4 H.K.L.R.D.70.
Lam Siu Po, (2009) 12 H.K.C.F.A.R. 237.
Koon Wing Yee, (2008) 11 H.K.C.F.A.R. 170.
Ubamaka, (2012) 15 H.K.C.F.A.R. 743.
C, (2013) 16 H.K.C.F.A.R. 280.
Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577, 654–655 (1993).
Anthony T. Kronman, Alexander Bickel’s Philosophy of Prudence, 94 Yale L.J. 1567, 1590 (1985).
Mark Tushnet & Rosalind Dixon, Weak-form Review and Its Constitutional Relatives: An Asian Perspective, inComparative Constitutional Law in AsiA (Tom Ginsburg & Rosalind Dixon eds., 2015).
