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Cliff Buddle

THE Appeal Court yesterday dismissed a claim that the functional constituency electoral system violated the Bill of Rights.

  The ruling, by three judges, set out the role of the Judiciary in considering legislation in the light of the Bill of Rights.

   Mr Justice Bokhary said judges could not rewrite legislation enacted after the Bill of Rights came into effect.

  They could only decide whether such laws were unconstitutional.

   The action was brought by Lee Miu-ling, 29, an assistant to legislator Emily Lau Wai-hing and Law Piu, 67. Ms Lee is a member of the human rights group United Ants and Mr Law is a father of a member of the group.

    Their barrister, Nigel Kat, claimed the functional constituencies breached their rights by giving an extra vote to other members of the electorate.

    Legislation relating to functional constituencies had been repealed by section 3(2) of the Bill of Rights, it was submitted.

    This section became the focus of attention last week when Chief Justice Sir Ti Liang Yang, giving his private views, said it 'gives the judicial organ legislative power'. He added that it, in effect, raised the status of the ordinance above ordinary statutes.

     Mr Justice Bokhary quoted an Appeal Court ruling last year which said: 'The Letters Patent entrenches the Bill of Rights by prohibiting any legislative inroad into the International Covenant on Civil and Political Rights as applied to Hong Kong.

   'The bill is the embodiment of the covenant as applied here. Any legislative inroad into the bill is therefore unconstitutional and will be struck down by the courts as the guardians of the constitution.'     Ms Lee and Mr Law sought the elimination of those features of the functional constituencies which make them objectionable, the court heard.

    Mr Justice Bokhary said: 'That may be what the plaintiffs desire. But we cannot rewrite the legislation under challenge. Our task is to decide whether such legislation is constitutional or unconstitutional.'     If Ms Lee and Mr Law were right in their claim that the functional constituency legislation was unconstitutional then the 30 people elected in this way would not be legislators.

    It would follow that there would be no Legislative Council because the constitution did not allow the council to exist without these members.

    The court ruled the functional constituencies legislation was constitutional.

    Article 21 of the Bill of Rights gives every permanent resident of Hong Kong the right to vote. That right was free from unreasonable restriction, the court heard.

    The judges ruled that the existence of the functional constituencies was not unreasonable.

    Mr Justice Bokhary said the court had to consider whether fair-minded people would condemn the functional constituencies scheme. This was not done by opinion poll or referendum. 'It falls to be answered by judicial decision,' he added.

    Mr Justice Bokhary, Mr Justice Litton and Mr Justice Godfrey upheld an earlier decision by Mr Justice Keith not to grant the declaration sought by Ms Lee and Mr Law. The judges dismissed their appeal against that decision but made no order for costs. They said the appeal had been in the public interest.



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