The Meaning of the Right to Vote in Hong Kong Simon Young' From 1982 to 1997, Hong Kong went from having no Entre 1982 et 1997, Hong-Kong est passde d'un gou- form of elected government to having a fully elected Legis- vemement non-6lu h un gouvemement entirement lu lative Council (though not entirely by geographical con- (bien que ces dlections n'aient pas dtd enti~rement basdes stituencies). Under Chinese sovereignty after 1 July 1997, sur des circonscriptions g6ographiques). Depuis le ljuillet Hong Kong has regressed to its pre-democracy days as a 1997, Hong-Kong, desormais sous juridiction chinoise, est result of the establishment of appointed provisional bodies revenue Ason syst~me prd-d6mocratique, suite A la mise en in place of the elected ones. Against this changing context place d'un Conseil l6gislatif entirement nomnm6. Le pr6- of the right to vote in Hong Kong, this article seeks to ex- sent article vise b expliciter les principes de base et les buts plicate fundamental principles and purposes which underlie qui sous-tendent le droit de vote. the meaning of that right. Apr6s avoir considdrd le statut du droit de vote dans After considering its constitutional and human-rights la contexte du droit constitutionnel et des droits de la per- status, the text of Hong Kong's Bill of Rights, and the his- sonne, ainsi que le texte du Bill of Rights de Hong-Kong et torical, social and political context of Hong Kong, it is ar- le contexte historique, social et politique de Hong-Kong, gued that the meaning of Hong Kong's right to vote is in- I'auteur propose une analyse double du droit de vote. formed by two purposes: the protection of all other human D'une part, le droit de vote sert A assurer le respect des au- rights and the achievement of self-government. Applying tres droits fondamentaux ; d'autre part, il vise garantir these principles, it is argued that the Hong Kong High l'autoddtermination interne. A la lumi~re de ces principes, Court was correct to find that the ten-year residency re- l'auteur conclut que la High Court de Hong-Kong a eu rai- quirement for candidacy unreasonably infringed the right to son de conclure que l'exclusion des candidats qui n'avaient vote. However, in a subsequent case challenging the sys- pas rdsid6 A Hong-Kong pendant au moins dix ans consti- tem of functional constituencies, both the High Court and tuait une violation du droit de vote. Toutefois, dana une af- Court of Appeal provided unsatisfactory decisions, which faire subs&luente, qui attaquait la validit6 des circonscrip- are critically assessed in this article. tions fonctionnelles, tant la High Courtque la Court of Ap- It is hoped that the principles of interpretation and peal ont rendu un jugement inad~quat. Ces d6cisions sont purposes of the right to vote outlined here will be adopted ici analys(es de mani~re critique. in the new Hong Kong, where legal and political en- I1 est Asouhaiter que les principes d'interpr&tation du croachments on the right to vote and other human rights droit de vote qui sont pr~sent s ici seront adopt~s AHong- appear imminent. Kong, oit de graves violations du droit de vote et d'autres droits de la personne semblent imminents. B.A.Sc. (McMaster), LL.B. (Toronto). This article originates from a ten-week internship at the University of Hong Kong and the offices of the Democratic Party (Hong Kong). The International Human Rights Internship Programme, at the Faculty of Law, University of Toronto, under the direc- tion of Professor Rebecca Cook, was responsible for making this experience possible. Accordingly, I am indebted to these institutions/organizations, and especially to Professor Cook, for all her encour- agement and support, Andrew Bymes, for his hospitality while in Hong Kong and superb scholarly guidance, George Edwards, for his indispensible research materials, and Ben Miller, for his guided exposure to the byzantine world of Hong Kong politics. An earlier draft of this paper was written un- der the directed research programme at the University of Toronto, under the supervision of Professor Katherine Swinton, for whom I have countless thanks for taking so much interest in the topic and providing numerous helpful suggestions during the whole writing process. That draft was awarded the 1996 University of Toronto Lily Rubenstein Prize in legal writing; accordingly, Philip Anisman is thanked in this regard. Finally, I wish to extend a special thank you to Martin Valasek and the other editors of the McGill Law Journalfor all their assistance leading up to this final version. © McGill Law Journal 1997 Revue de droit de McGill To be cited as: (1997) 42 McGill LJ. 649 Mode de r6f~rence : (1997) 42 R.D. McGill 649 650 MCGILL LAW JOURNAL!REVUE DE DROIT DE MCGILL [Vol. 42 Introduction 1. The Changing Context of the Right to Vote in Hong Kong A. Introduction B. A Political Framework in Transition 1. The Political Framework under British Rule a. Fundamental Institutions b. Hong Kong's Three-Tiered Structure of Representative Government i. District Boards ii. Municipal Councils iii. Legislative Council iv. Summary of Observed Trends 2. The Political Framework under China's Basic Law 3. Impact of the Hong Kong Bill of Rights Ordinance II. The Meaning of the Right to Vote under the Bill of Rights A. A Constitutional Right 1. Implication for Interpretation a. Generous Interpretation b. Constitution As a "Living Tree" c. Purposive Approach 2. Insights from Jurisdictions with Constitutionally Entrenched Rights a. Canada b. United States B. A Human Right 1. Significance of Status 2. Insights from International Human-Rights Law a. International Covenant on Civil and Political Rights b. European Convention on Human Rights C. Text and Context of the Bill of Rights II1. Purposes Underlying the Right to Vote in Hong Kong A. Protection of All Other Human Rights B. Achievement of Self-Government 1. External Right of Self-Determination: Missed Opportunities 2. Internal Right of Self-Determination: Self-Government 1997] S. YOUNG - THE MEANING OF THE RIGHT TO VOTE 651 IV. Hong Kong's Right-to-Vote Cases A. Residency Requirement Impugned: Lau San-ching B. Functional Constituencies Challenged: Lee Miu-Iing 1. "One Person, One Vote" 2. Size of Functional Constituencies 3. Subsidiary Complaints V. The Future of the Right to Vote in Hong Kong A. Constitutional Impediments B. Real and Anticipated Encroachments 1. The Provisional Legislature: Democracy in Reverse 2. Abolition of the Hong Kong Bill of Rights Ordinance 3. Implementing Article 23 of the Basic Law: Restrictions on Expression and Assembly Conclusion 652 MCGILL LAW JOURNAL! REVUE DE DROITDE MCGILL [Vol. 42 Introduction Hong Kong is a place that has only recently come to acquire the right to vote. For well over a century, the people of Hong Kong had no legal right to determine the con- duct of public affairs. From time to time, certain sectors of Hong Kong society were consulted in the development of government policy, but Hong Kong people had to wait until 1982 before they received any form of elected popular representation. Full democracy in 1982 was not an option; instead, a process of democratization was planted to devolve political power gradually to Hong Kong residents. Despite its short history, the right to vote has brought about significant changes to the social and political fabric of Hong Kong. In 1991, the right to vote itself under- went a significant change, being elevated to the status of a constitutional norm with the passage of the Hong Kong Bill of Rights Ordinance'("B.O.R.O."). Because of the nature and history of the Hong Kong Bill of Rights,2 the right to vote also acquired the status of a fundamental human right, which has its roots in the United Nations' Inter- national Covenant on Civil and Political Rights.3 The arrival in 1992 of Governor Christopher Patten, with his package of constitutional reforms, was another signifi- cant event in the life of Hong Kong's right to vote. His reforms materialized in the 1994-95 elections, making Hong Kong the most democratic it ever was. On 1 July 1997, the right to vote evolved once again as a result of Hong Kong's transfer of sov- ereignty. China's unilateral action to replace the 1995 elected Legislative Council with an appointed provisional legislature marks a fundamental step backwards in the prog- ress of Hong Kong's right to vote. The establishment of a new constitutional order under the Basic Law' also has significant implications for the right to vote. The overall purpose of this article is two-fold: first and foremost, to determine the meaning of the right to vote in Hong Kong and to illustrate its application with a criti- cal analysis of two important cases; second, to demonstrate a purposive method of interpretation which could presumably be applied to the interpretation of rights con- tained in the Basic Law. In Part I, the article begins with a description of the changing political and constitutional context of the right to vote in Hong Kong. Although somewhat lengthy, this background is necessary for understanding its implications for the legal meaning of.the right to vote. In Part II, a review of the jurisprudence from the United States, Canada, and the United Nations and European international human- rights regimes and an analysis of the text and context of the Bill of Rights discloses some important ideas about the substance of the right to vote and a method for deriv- ing the meaning of that right in terms of its underlying purposes.