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Hong Kong lawyers warn of ‘grave concern’ over postponement of election

Hong Kong democrats’ primary election in Tsuen Wan (Wpcpey/WikiCommons)
August 05, 2020

This article was originally published by Radio Free Asia and is reprinted with permission.

Lawyers in Hong Kong have hit out at the decision by the city’s leaders to postpone Legislative Council (LegCo) elections for one year, saying they have “grave concern” that the move wasn’t even legal.

The Hong Kong Bar Association (HKBA) said in an Aug. 2 statement that the right to vote should be guaranteed by the city’s mini-constitution, the Basic Law.

“The HKBA considers that there are serious doubts about the legal and evidential basis of the government’s decision,” the association said in a statement on its website.

While chief executive Carrie Lam has justified the move by pointing to a resurgence of coronavirus cases in Hong Kong in recent weeks, the HKBA said the United Nations has warned that governments should not do this.

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“States should provide transparency as to their decision-making processes in the context of elections … and should consult with civil society in determining appropriate approaches,” the statement cited the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association as saying.

“States should take all measures possible to ensure the timely carrying out of elections, including through the utilization of alternative voting procedures such as mail-in ballots,” it quoted them as saying.

By contrast, Lam’s decision had been taken with no consultation of civil society, nor with the advice of public health experts.

“There is also little evidence that the [government] has considered alternative measures to alleviate the possible health risks,” the HKBA said.

It said Lam’s administration had failed to explain in any satisfactory manner why the election had been postponed for a year, instead for a shorter time period.

It warned that the decision, made by invoking emergency regulations, could turn out to be unlawful, as the regulations are currently the subject of a legal challenge before the Court of Final Appeal.

It said there are already specific legal provisions for postponing elections by up to two weeks in times of danger, but that these aren’t being used.

“Alarmingly, the government has decided to seek a decision of the standing committee of the National People’s Congress to resolve the question arising from the decision to postpone the election relating to the term of office of LegCo as stipulated by the Basic Law,” the HKBA said.

It said Lam is effectively inviting the ruling Chinese Communist Party in Beijing to override the Basic Law to preempt legal challenges to her decision.

“This is contrary to the principles of legality and legal certainty and degrades the rule of law in Hong Kong,” the HKBA said.

US condemns decision

In Washington, U.S. Secretary of State Mike Pompeo condemned the decision to postpone the elections.

“[China] has shown time and time again that it has no intention of fulfilling its promises to its own people,” Pompeo tweeted.

“The United States condemns its one year postponement of Hong Kong’s Legislative Council elections.”

He said in a separate statement dated Aug. 2: “There is no valid reason for such a lengthy delay. It is likely, therefore, that Hong Kong will never again be able to vote – for anything or anyone.”

Pompeo said Beijing has no intention of upholding the commitments it made to the Hong Kong people and the United Kingdom under the Sino-British Joint Declaration, a UN-registered treaty, and the Basic Law.

Some may lose their seats

Meanwhile, concerns are growing that four pro-democracy politicians whose nomination for the now-postponed election had been rejected by election officials, known as returning officers, will now be stripped of their current seats entirely.

Tam Yiu-chung, who represents Hong Kong on the NPC standing committee told local media that allowing Alvin Yeung, Derek Kwok, and Kwok Ka-ki to continue to serve in LegCo and Fergus Leung to continue in the District Council would “create a conflict.”

“The returning officer has already decided that these Legislative Council members aren’t eligible to run in the election,” Tam said. “I think it would be a contradiction of that if they were allowed to return to LegCo for another year.”

Tam said it was up to the NPC standing committee, which will meet in Beijing on Aug. 8, to decide how to proceed.

Yeung said he had been disqualified on shaky grounds in the first place.

“I have only been disqualified by a returning officer, not by the people of Hong Kong,” he said. “I do not agree that I do not uphold the Basic Law, and the returning officer’s decision was based on a one-sided view.”

Zhang Xiaoming, deputy director of the Hong Kong and Macao Affairs Office of China’s cabinet, the State Council, arrived in Hong Kong on Monday for meetings with officials and pro-China politicians.

But Hong Kong current affairs commentator Liu Ruishao said Beijing has likely already decided what is going to happen next.

“It is likely the NPC will decide that the disqualified members can’t form part of the [interim] LegCo,” Liu said. “The effect will be that the pro-democracy camp will then have less than half the one-third of seats needed to veto proposals.”

“Then, the government will be able to pass any number of laws that suit it or the pro-China camp without delay,” he said.