When 'one country, two systems' meets 'one person, one vote': the law of treaties and the handover narrative through the crucible of Hong Kong's election crisis

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Date: Dec. 2015
From: Melbourne Journal of International Law(Vol. 16, Issue 2)
Publisher: Melbourne Journal of International Law, Inc.
Document Type: Article
Length: 15,433 words
Lexile Measure: 1870L

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(ii) Doctrinal Logic: Implied Right

Related to this, a right to universal suffrage can logically be read into the text of the Joint Declaration from a method of interpretation known as 'implication from text and structure' or implied rights. (200) Pursuant to this doctrine, from a nucleus of existing rights, an associated right can be presumed that inferentially flows from the others. In Australia, significantly, this doctrine has been employed by the country's High Court in the electoral context. In Roach v Electoral Commissioner, (201) the Australian High Court found that legislative measures to disqualify all prisoners from voting were invalid because they interfered with a right for all citizens to vote that was read into Australia's constitution based on rights of representative government, participation in the life of the community and citizenship. (202) Of this case, Professor Anthony Gray observes:

It is worth noting that, unlike most other Western nations, Australia lacks a bill of rights. Perhaps as a counterweight to this, some judges in the High Court of Australia have found implied rights in the Constitution. In ... Roach v Electoral Commissioner, a majority of the High Court deduced, from sections of the Constitution that mandated that the Parliament (Australian Congress) be directly chosen by the people, something approaching a right to vote ... Chief Justice Gleeson noted that the franchise was critical to representative government and lay at the centre of participation in the life of the community and citizenship. (203)

Consistent with this, the Australian High Court has gleaned an implied right of 'freedom of political communication' that is derived from the explicit rights of representative and responsible government. (204) Former Australian High Court Justice Michael Kirby has said of this implied right:

[It] is elementary lawyering that documents have implications as well as express textual statements. It doesn't seem to me, looking as objectively as I can to what was done in the implied rights cases, to be a very large statement to say what the Court said. This was that, in a Constitution which is otherwise very sparse in its text (but has quite detailed provisions for how we elect the Parliament), it is necessary, in order that such elections should not be a charade, that there be an entitlement to have a proper and effective national debate of the issues relevant to an election ... Even accepting an implied constitutional right to free speech, I don't think I would have struck down the statutory limits on electoral advertising for a Parliament chosen by the people. But that's not the question. The question is whether you can draw implications. (205)

The existence of a right logically inferred from an existing core of other related rights has also been acknowledged in US constitutional law. For example, although privacy is considered a fundamental right, it is not explicitly recognised in the United States Constitution. (206) As Steven Bennett notes:

The notion that individuals have a right to privacy is not a new development, yet, this is...

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