Administrative Law — Court of First Instance decides on constitutionality of new nomination requirement applicable to District Council geographical constituency elections
On 1 December 2023, the Honourable Mr Justice Coleman (the Judge in charge of the Constitutional and Administrative Law List of the High Court) handed down judgment ([2023] HKCFI 3074) after a rolled-up hearing on 30 November 2023, granting leave to apply for judicial review challenging the constitutionality of a new nomination requirement under section 7(2) of the District Councils (Subscribers and Election Deposit for Nomination) Regulation, Cap 547A (“the Nomination Requirement”), but dismissing the substantive application for judicial review upon full consideration of the merits. Anson Wong Yu Yat acted for the Applicant in this case.
Under the Nomination Requirement (which came into effect on 10 July 2023), a person seeking nomination in respect of a District Council geographical constituency is required to obtain nomination from: (1) not less than 50, but not more than 100, electors for the constituency, and (2) not less than 3, but not more than 6, members of each of the three District Committees in the District – the latter being the focus of challenge. The Applicant challenged the Nomination Requirement on the ground that it constitutes a disproportionate interference with the right to stand for election and/or the right to take part in the conduct of public affairs through freely chosen representatives protected by Article 26 of the Basic Law of the HKSAR and/or Article 21 of the Hong Kong Bill of Rights.
The Court accepted the Applicant’s contention that the aforesaid fundamental rights are engaged. Nevertheless, applying the settled four-step proportionality analysis/test, the Court held that the impugned Nomination Requirement is proportionate.
The Court acknowledged the importance of the point which has been raised in these proceedings and considered that it must be addressed at the first available occasion, remarking that a constitutional challenge lies at the core of the rule of law.
This judicial review presented an early opportunity for the Court to determine the constitutionality of the Nomination Requirement before the forthcoming District Council Ordinary Election due to be held on 10 December 2023. It is encouraging that the Court observed in its judgment (at §14) that the written and oral submissions presented by both teams of Counsel (for the Applicant and the Government respectively) “were of a very high standard, not least against the tight timetable for bringing this matter to an effective hearing”.
The Court’s judgment can be found here.
The Applicant was represented by Anson Wong Yu Yat (together with Jonathan Ip).
Anson Wong Yu Yat
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This article was first published on 4 December 2023.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.