Too early for judicial review, top court rules

PUBLISHED : Tuesday, 12 July, 2011, 12:00am
UPDATED : Tuesday, 12 July, 2011, 12:00am


The High Court yesterday refused permission for a judicial review of the government's proposal to scrap by-elections, saying it was too early as the bill had yet to become law.

Mr Justice Johnson Lam Man-hon said the Court of First Instance would not interfere with the legislative process.

Cheung Tak-wing, 54, filed a writ on June 27 seeking a review over the government's decision to push through the bill to scrap by-elections and fill any mid-term vacancy with the next-best-placed candidate without launching a public consultation.

Cheung argued that the bill was unconstitutional because it denied his right to vote and stand for an election as protected under the Basic Law. He said the government's decision affected the rights of more than 3.4 million registered voters.

The government revised the bill on June 28 and announced a consultation a few days later, the court heard. Under the revised proposal, the vacancy would be filled by the next-best-placed candidate from the same list as the departing incumbent.

Cheung argued that it was still unlawful for the government to launch a public consultation because the revised bill remained unconstitutional.

In rejecting the application, Lam agreed with lawyers for Constitutional and Mainland Affairs Secretary Stephen Lam Sui-lung that it was too early to challenge the government as the bill was still going through the legislative process and its content was not final. Lam said it was unpredictable whether the government's decision would be further revised after the public consultation or whether any amendments would be made during the second reading of the bill in the Legislative Council.

'The court cannot even foresee whether the bill would be passed,' the judge said.

In January last year, five Civic Party and League of Social Democrats lawmakers resigned to trigger by-elections, which they hoped would be seen as a de facto referendum on the pace of democratisation. But other parties did not contest the polls, and all five were voted back into office four months later.