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compliance with ICCPR article 25(b) (BOR article 21(b)),
notwithstanding the existence of functional constituencies
A in which some people get a second vote
ote. Any move to make the geographical constituency elections something less than
elections by universal and equal suffrage, by excluding,
for example, functional constituency voters, would be prima facie inconsistent with article 25(b) There would then be
no LegCo elections based on universal and equal suffrage.
B
Votes cast
10.
elevant rpis orges.
Nor, in my view, does it help if one considers
the geographical and functional constituency elections together for the purpose of testing the proposal of limiting persons to a vote in either constituency. While
there would, under such a proposal, be universal suffrage, that suffrage would not be equal, in the sense that each vote carries equal weight. Clearly, it could not be said that a vote in a functional constituency would carry the same weight as a vote in a geographical constituency.
11.
The question arises whether such a proposal could be said to be a reasonable restriction on the right
to vote enshrined in article 25(b). The opening words of article 25 permit restrictions on the specified rights
which are not "unreasonable restrictions".
12.
in the discussions which preceded the adoption of article 25, it was pointed out that this referred to such matters as the minimum age for voting, or the exclusion of mentally ill persons. Qualifications based on
property or the level of income were considered
impermissible. Apart from this, "what restrictions are
reasonable may not always be agreed upon, and ... the state
has a margin of appreciation, but subject to international review and scrutiny”. (Partsch, "Freedom of Conscience and Expression, Political Freedoms, op cit, at p.238.)
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13.
It has been said in the Privy Council, in a
constitutional context:
1.4.
"A provision
which permits Parliament, by
legislation ... to impose limitations or
qualifications upon any of those entrenched rights, is not to be construed expansively so as
to authorise it to deprive the individual of the
substance of the right which prima facie is conferred upon him by the Constitution, under
the guise of imposing limitations or
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qualifications upon it. (Attorney General v
Ryan, (1980) A.C. 718 at 728)
On one view, requiring a person to opt for a vote in either a geographical or a functional constituency is not unreasonable. It is a proposal based on
considerations of fairness. It would deny the article
35(b) right only to those who chose to vote in a functional constituency. They would, in effect, trade their article 25(b) right for another which may actually be more valuable. However, such a restriction on their voting rights in geographical constituencies would have nothing to do with their capacity to vote, as in the case with restrictions based on age or mental capacity for example. And, whatever the motivation for the restriction, the legal effect would be to deprive certain persons of the right guaranteed by article 25(b), that is a right to vote in elections based on universal and equal suffrage. I doubt whether such a restriction could properly be regarded as a reasonable restriction of the right but I accept that the matter is arguable.
15.
Assuming that the proposal is not consistent with article 25(b), it would also, it seems to me, not be consistent with article 39 of the Basic Law, if implemented after June 1997. Article 39 says, in effect, that the
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provisions of the ICCPR as applied to Hong Kong shall
remain in force and shall be implemented through the laws
of the HKSAR and that any restrictions on rights and
freedoms shall not be inconsistent with the ICCPR as
applied and as so implemented.
15.
Article 68 of the Basic Law provides, among
other things, that the Legislative Council of the SAR shall
be constituted by election and that the ultimate aim is the
election of all the members of the Legislative Council by universal suffrage. That, of course, is entirely consistent with a dual geographical/functional constituency electoral system and also with ICCPR article 25(b) which, as I have indicated above, only requires some elections, in this case those for the geographical constituencies, to be by universal and equal suffrage.
Jam Plane
(Ian Deane)
Assistant Solicitor General (2) 17 December 1992
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