The concept of “human rights” has triggered distortions in the legal process in Hong Kong that are causing serious problems for the judiciary, says Henry Litton, a senior legal commentator. This is the second of two parts, but can be read independently. To read the first part, click this line. To read an earlier essay by the same author, outlining the topic, click this line.
THE HUMAN RIGHTS INDUSTRY is built upon a distorted form of judicial activism to which, as time went on, the Court of Final Appeal (CFA) showed itself increasingly committed.
Take two contrasting cases, both dealing with new migrants and their access to government social benefits. When government formulates policies to deal with social issues, it must have regard to many factors. Hence, lines must be drawn somewhere with regard to eligibility. This is a matter for the executive. In a constitutional set-up delineated by the separation of powers, there is no room for judicial interference.
For example, take Fok Chun Wa v Hospital Authority [FACV 10/2011, 2/4/2012] where non-Hong Kong residents were denied subsidized medical services at public hospitals.
As Ma CJ said ( para 73 ): “ …..where a line is drawn between those who are entitled to a benefit and those who are not, the court can legitimately take into account the clarity of the line and the administrative convenience of implementing the policy …..Drawing the line at residence status is a clean line and also convenient to administer”.
The CFA upheld the policy, saying that this was a matter of allocating limited public resources, where the executive is much better equipped than the courts.
Contrast this with Kong Yu Ming v Director of Social Services [2014, HKC 518] where the CFA took a totally different approach.
There a policy change for eligibility was made, elevating the period of one year’s residence to qualify for social assistance to seven years. This related to a service called the Comprehensive Social Security Assistance scheme (CSSA); one among many different schemes operated by the Department. The budget for the department as a whole was, of course, limited.
As time went on, the CSSA took up an increasingly large proportion of the total allocation. For instance, in 1993/4 it was 27%; by 1997/8 it had gone up to 45% and rising. With Hong Kong’s ageing population, and many unskilled migrants coming into Hong Kong under the one-way permit scheme year after year, the distortion in the allocation of resources was unsustainable. Hence, the threshold for assistance under the CSSA was elevated to seven-years’ residence.
Kong Yu Ming, a new migrant from the Mainland, was caught under the seven-year qualification rule. She brought proceedings for judicial review, claiming that the rule was unconstitutional in that it conflicted with her “rights” under two provisions of the Basic Law: Articles 36 and 145.
These stipulate as follows:
Article 36: “Hong Kong residents shall have the right to social welfare in accordance with law”.
Article 145: “On the basis of the previous social welfare system, the Government of the HKSAR shall, on its own, formulate policies on the development and improvement of this system in the light of the economic conditions and social needs”.
As can be seen, Article 36 is formulated in the widest possible terms. No specific right is identified.
Regarding Article 145, it addresses broadly the “previous social welfare system” and how it might change over the years. It appears in Chapter VI of the Basic Law which deals with a range of other matters: Education, Science, Culture, Sports, Religion and Labour. The words “development and improvement” must be seen in round terms: an increase in benefits in one sector may mean decrease in another. It constitutes general guidance for the Hong Kong SAR government, adding flesh to Article 36.
At first instance, Andrew Cheung J had no difficulty in rejecting the claim. He concluded as follows:
“As I said, starting from the premise that Hong Kong has always had a residence requirement in its social welfare system which is recognised by the Basic Law; increasing the length of residence is really a matter of degree …….I take the view that looking at the matter in the round, this is not something that the courts are constitutionally entitled, and institutionally equipped, to interfere with. In short, it is really a matter of politics for government officials and politicians, not for the courts and judges. It is particularly so when the background is nothing other than social and economic conditions and needs”.
The Court of Appeal adopted the same approach and upheld Andrew Cheung J’s judgment.
THEN EVERYTHING CHANGED
But when the matter reached the CFA, it took an astonishing turn. The court did a conjuring trick, pulling a rabbit out of the hat. It concluded by a majority that the “right” referred to in Article 36 was not simply a general right to social welfare; it was a specific and personal right, concretised as matters stood on 1 July 1997, when the threshold for assistance under the CSSA was one year’s residence.
This is breathtaking. How anyone could squeeze such a meaning out of the few general words in Article 36 defies imagination. Prof. Albert H Y Chen, with tongue in cheek, called it “a stroke of genius” in an article in the Hong Kong Law Journal.
With this creative interpretation of Article 36 as its platform, the CFA embarked upon a “proportionality analysis” and, applying norms articulated by the European Court of Human Rights in Strasbourg, concluded that the seven-year residential requirement was unconstitutional. It restored the former requirement of one year’s residence.
Bokhary PJ took no part in the conjuring trick. His focus was on Article 145, not on Article 36 which he accepted conferred nothing more than a general right to welfare services. But he too fell into the same error as the majority, reading into Article 145 more than the general words could bear. He said that when the Basic Law was promulgated in April 1990, the one-year residential requirement for CSSA was already in place; hence only “a really serious economic downturn” might justify a new restriction; nothing less.
The result was that the CFA declared the seven-year rule unconstitutional and gave relief to Kong Yu Ming, converting general provisions in the Basic Law regarding social welfare into specific enforceable personal rights.
Not for a moment did the CFA consider the bigger picture: that the judicial review process is concerned ultimately with good governance of the Region. And, as Andrew Cheung J said, the courts are simply not equipped to draw lines on entitlement to social benefits.
The outcome was that, regarding residential status under the CSSA, the one-year requirement was set in stone. The Director of Social Services lost all flexibility.
With the CFA committed to the path of adventurism, willing to give distorted meanings to Articles in the Basic Law to comply with its own view of social justice, one can imagine the small cohort of lawyers making up the human rights industry toasting the result in champagne.
The case that elevated judicial adventurism to new heights was Hysan Development & Others v Town Planning Board [FACV 21/2015, 26/9/2016].
The Town Planning Board is a statutory body. Its main function is to produce draft outline zoning plans (OZP) for specified districts as required by the Chief Executive. It exercises no powers as such. It is only when a draft plan has been approved and exhibited by the Executive in Council that the plan becomes the standard for the exercise of powers and discretions by public officers in relation to the matters dealt with in the plan (s.13 Town Planning Ordinance).
The Board’s mandate in producing draft plans is wide: its object is to “safeguard the health, safety, convenience and general welfare of the community”: s. 3(1).
In this context, it is difficult to see where there is room for judicial intervention. The CFA’s judgment in Hysan Development proved otherwise: by distorted interpretation of the Basic Law, viewed through the lens of European human rights jurisprudence.
The case itself began as a routine piece of business: a determination by the Board of objections to the draft OZP for Wan Chai and Causeway Bay.
There were only two basic town planning issues: air ventilation in a high-rise built-up area, and amenities for pedestrians in the streets below. The Board had imposed various restrictions on future development to which the company objected. These restrictions related to air ventilation and pedestrian circulation. The Board had a huge number of studies on those matters before it resolved to maintain the restrictions.
The company took the Town Planning Board on judicial review and the case went before a High Court judge. This is what the judge said about counsel’s presentation of the case on behalf of the land owners:
“[Counsel’s] written submissions run for nearly 100 pages in what is …..a jumbled, rambling and repetitive manner. In practical terms, it is impossible to deal with every one of the myriad tiny points to be found in [counsel’s] written submissions ….”.
The application was dismissed, except for one minor point of no consequence to the main issue.
The matter went to the Court of Appeal. There, counsel raised an argument which, at first instance, he said he was not pursuing (for good reason): that the restrictions imposed on the sites constituted “deprivation of property” contrary to Articles 6 and 105 of the Basic Law.
Article 6 says: “The Hong Kong SAR shall protect the right of private ownership of property in accordance with law”.
Article 105 says: “The Hong Kong SAR shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property”.
These two Articles are not confined to land. They concern “property”. Full stop. A car is property, so is a bottle of whisky, a gun, a live chicken or a can of soft drink. If the keeping, use or consumption of such things need to be regulated, that would be done at an administrative level, through laws passed by the legislature, or by subsidiary legislation. The Basic Law deals with matters at a far higher constitutional level. Plainly, Articles 6 and 105 were not engaged. They were not designed to regulate the conduct of a statutory body such as the Town Planning Board, which has its own regulating law.
When the Board prepares a draft plan, it is of course dealing with private property rights. These are balanced against the public interest in “health, safety, convenience and general welfare of the community” [ s.3(1) ]. No one suggests that the wide mandate given to the Board conflicts with the Basic Law.
What is more, when a draft plan finally goes up to the Chief Executive in Council, it must be accompanied by a summary of all objections made in the drafting process: s.8(3). The Chief Executive in Council then exercises its discretion whether to approve or not approve the plan or send it back to the Board for amendment. It is only when the draft is approved and exhibited that it becomes the OZP for the district concerned. It is then that it bites. By this time, the Board has discharged its function.
If there should be unlawful restrictions in the OZP, it would be the Chief Executive in Council that should be taken to task, not the Board. But, as the Court of Appeal said (echoing the first instance judge), a landowner takes property subject to an implied condition that, for the public good, the government may by regulation limit the use to which such land might be put in the future: in the same way that it might regulate the use of a car or the sale of soft drinks.
Plainly, Articles 6 and 105 of the Basic Law were not engaged. The Court of Appeal so held.
EUROPEAN HUMAN RIGHTS LAWS CITED
When the matter reached the CFA, it took an astonishing turn. Ribeiro PJ gave the only judgment, agreed to by the other four judges. This is how Ribeiro PJ saw the issues:
“The questions which fall to be answered on this Appeal are ….as follows:
(a) Are Articles 6 and 105 … engaged where landowners complain about planning restrictions imposed by the Board on the use of their land?
(b) If so, must the restrictions be subjected to a proportionality analysis?
(c) If so, what standards or tests should the Court apply in conducting a proportionality assessment in a case like the present, and in this context, is the jurisprudence of the European Court of Human Rights (“ECHR”) on Article 1 of Protocol 1 ( “A1P1”) of the European Convention on Human Rights (“ECHR”) of assistance?”
Questions (b) and (c) have no relevance unless the answer to question (a) were Yes.
The central feature of Articles 6 and 105, as Ribeiro PJ rightly said, is that they impose an obligation on the HKSAR to protect private property rights (para 29). Full stop. Those Articles stipulate that the obligation is to be discharged by providing such protection “in accordance with law”.
Ribeiro PJ then went on to say:
“It is well-established that they mandate the principle of legal certainty, requiring the subject-matter of the Article to be regulated by laws which are accessible and precisely defined” (para 30).
What then is the “subject-matter” of those Articles as applied in the Hysan Development case?
It is clearly the Board’s process in drafting a plan for the Wan Chai and Causeway Bay district, in the course of which the Board imposed restrictions on future development, to which Hysan Development objected. All this was done under the broad mandate given to the Board, to promote “health, safety, convenience and general welfare of the community”: section 3(1). Nobody has ever suggested that there is uncertainty in the Board’s mandate.
Ribeiro PJ himself accepted this, for he said (para 37):
“In the present case, the developers’ challenge is not to the constitutionality of the Town Planning Ordinance itself”.
That should have been the end of the matter, for the Board operated under no other law than the Ordinance.
How, then, did Ribeiro PJ come to the conclusion that Articles 6 and 105 were engaged in this case? The logic, if such exists, is impossible to follow. Woven into his analysis is Article 1 of Protocol 1 of the European Convention on Human Rights which, somehow, introduced “another aspect of protection” of property rights (para 30), giving those two Articles meaning which their plain words cannot bear.
As no clear logic justified his conclusion, the judge simply summarised the matter at the end of his judgment as follows (para 132):
“Articles 6 and 105 are engaged in cases where it is factually established that planning restrictions imposed by the Town Planning Board encroach upon a landowner’s property rights”.
Full stop.
This is breathtaking. In every draft plan case under the Ordinance, some form of encroachment upon a landowner’s property rights would be “factually established”. This is inherent in the process. Its lawfulness, according to Ribeiro PJ, would then be judged by the courts following a “proportionality analysis” as evolved by the European Court of Human Rights set up in Strasbourg, and refined by the CFA itself. This, as Ribeiro PJ said (para 50), draws “heavily on the jurisprudence of other jurisdictions”.
The judge then, page after page, discussed what a proportionality analysis meant in European jurisprudence. It was a 3-step analysis, but he added a fourth step for Hong Kong.
PLAIN WORDS ‘CREATED A MONSTER’
All this “learning” grew from the few plain words of Articles 6 and 105. It created a monster, at first attached to those two Articles as applied to the Town Planning Ordinance, and very quickly spread to other areas of the law.
An example is the recent case of Law Yee Mei v Chief Executive & Others [HCAL 151/2022] where a High Court judge subjected the Prevention and Control of Disease (Vaccine Pass) Regulations, Cap. 599L to the “well-known four-step proportionality test in Hysan Development Co Ltd v Town Planning Board”: see p. 29 of my recent book of essays “Law in a Hot Air Balloon”.
This requirement to apply the four-step analysis to restrictions on the use of property is not confined to landed property. Those two Articles refer simply to “property”. Full stop. The judgment in Hysan Development would therefore impose an inhibiting factor on the government should it need to put restrictions on the use of private property generally: say, motor vehicles, or harmful products etc.
Ribeiro PJ’s judgment is 55 pages, crammed full of reference to foreign jurisprudence. Incomprehensible. At para 130 it says:
“A final point might be mentioned by way of guidance to the Board. It should be emphasised that it is the Court which has the ultimate responsibility for determining whether any restriction imposed by the Board can be subjected to a successful constitutional challenge”. Then he added:
“The Board’s role is to carry out its duties and to exercise its powers in accordance with the Town Planning Ordinance”. Which is what the Board did.
“Guidance to the Board”, said the judge. What guidance? The Board members must be scratching their heads in total confusion, confronted with the 55-page judgment.
What, then, is the point of the judgment? If the four-step proportionality analysis serves any purpose at all, it is at the constitutional level, as to which Ribeiro PJ has expressly disavowed as relevant in this case. This is what he said (para 142):
It is considered to be highly unlikely that Board decisions imposing planning restrictions arrived at lawfully and in conformity with the principles of traditional judicial review, would be susceptible to constitutional review unless the measures are exceptionally unreasonable”.
What the judgment has done is to introduce uncertainty into an area of law which hitherto has worked well. This has come about through a warped interpretation of the two Articles in the Basic Law. The harm can only be undone if the Standing Committee of the NPC should exercise its powers of interpretation under Article 158(1) of the Basic Law – a sock in the eye of the CFA should it do so. Yet another dent in Hong Kong’s high degree of autonomy, self-inflicted.
Who are the winners in this case? Once again, it would be the human rights industry, which thrives on uncertainly and lack of discipline in the law.
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.