Government still not in clear over by-elections axe

PUBLISHED : Wednesday, 29 June, 2011, 12:00am
UPDATED : Wednesday, 29 June, 2011, 12:00am


Challenges could still be in the pipeline despite the government's changes to the way vacant Legislative Council seats are filled, according to legal scholars.

The original plan to fill midterm Legco vacancies with the next-best-placed candidate instead of a by-election sparked fierce criticism from the Bar Association.

It issued three strongly worded warnings within 10 days of officials first announcing the plan.

Yesterday's revision would only 'reduce the risk of a successful constitutional challenge', said Basic Law Committee member Professor Albert Chen Hung-yee.

Under Secretary for Constitutional and Mainland Affairs Stephen Lam Sui-lung's revised plan, any directly elected seat vacated for any reason - including death or resignation - would be filled by the next candidate on the party list of the former incumbent. If the candidates remaining on the list do not want to take up the seat or are ineligible, the next-best-placed candidate from another party list will fill the seat.

If that does not work, a by-election will be held.

Chen said Lam's revised plan still left room for constitutional challenges, including a judicial review.

'The risk will be reduced, but it is still there,' said Chen, a professor of constitutional law at the University of Hong Kong.

He cited the Bar Association's repeated warning on the constitutionality of the original proposal and concerns over restrictions it might place on a person's right to vote.

'If the issue is really brought to the court, the crux depends on whether the restriction - if any - is judged as proportionate.

'The government has to prove it has a legitimate aim in restricting the right, possibly including promoting the proportional representation system or preventing resignation for political reasons,' said Chen. Cheung Tat-ming, another legal scholar with HKU, said: 'The key constitutional issue for the government to argue is whether the new mechanism can fairly and reasonably reflect the voters' will. It is not a constitutional right to hold by-elections,' said Cheung.

Lam cited Germany, Finland and Poland to justify yesterday's move.

But according to political scientist Dr Ma Ngok, of Chinese University, the European electoral systems deviated from his proposal.

He said: 'The proposal itself has self-contradictory logic. While replacing vacancies with any same-party candidate assumes voters give mandate to the party, the second option - filling the vacancy with the next-best-placed candidate - assumes electors vote for individuals.'



Vacancy to be filled by original legislator's running mate who placed highest in his or her team;

If team has no candidate willing and eligible to fill vacancy, top candidate in next-best-placed team will be offered seat;

If this candidate refuses or is ineligible to fill vacancy, top candidate in next-best-placed team will be offered seat;

If list of top candidates from all teams is exhausted, by-election is held.


When vacancy arises, candidate from next-best-placed team in previous election to take over seat;

When list of candidates exhausted and no replacement candidate found, by-election held.


A by-election will be held whenever a vacancy arises.