Behind the Text of the Basic Law
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the Executive Government when it involves the constitutional competence
of another branch of government. This is witnessed by the adoption of the
manifestly without reasonable foundation test even in civil and political rights.
In Kwok Cheuk Kin v. Secretary for Constitutional and Mainland Affairs, the
Court of Appeal reinterpreted the three-tier test adopted in Kong Yunming.
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In that case, the issue was whether a prohibition against
a legislator who has
resigned from the Legislature from taking part in the by-election for the vacant
seat that was created by his resignation was a proportionate restriction on the
right to vote. The restriction was a response to the attempt of some Legislators
who tried to seek popular mandate and force an effective referendum on a
controversial issue by resignation and then taking part in the by-election on a
single-issue platform. While the right to stand for election is no doubt a civil
and political right, the Court of Appeal held that:
Properly read, in Kong Yunming, Ribeiro PJ applied the proportionality
test and he was only referring to the difference in the intensity and stand-
ard of review in the application of the third limb of that test (proportionate
restriction).
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By reinterpreting the test in Kong Yunming, the Court of Appeal held that there
was only one proportionality test and there was no separate minimal impair-
ment test, thereby eschewing the difference between civil and political rights
and social and economic rights. It maintained the test of manifestly without
reasonable foundations for social and economic rights, but then decided to
adopt the same test, or at least a wide margin of appreciation in favour of the
Government, for the right to stand for election on the ground that the issue
was political in nature. The application for judicial review failed.
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The reluctance of the courts to intervene in the allocation of public
resources has long been recognised in the common law and could be traced
back to the doctrine of separation of powers. This attitude manifested itself in
the treatment of social and economic rights in the Basic Law, when the Basic
Law itself has not drawn any such distinction. It has led the courts to develop
a different notion of proportionality test, namely a test of manifestly without
reasonable foundations, and the test was then extended even to the right to
stand for election on the ground that the issue was political. The doctrine of
separation of powers is not explicit, but it is certainly in operation.
85
[2015] 5 HKLRD 881.
86
Para 28.
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The Court of Appeal has refused to grant leave to appeal to the Court of Final Appeal. The
applicant is currently applying for leave to appeal from the Court of Final Appeal.