By-election options dismissed

PUBLISHED : Thursday, 15 September, 2011, 12:00am
UPDATED : Thursday, 15 September, 2011, 12:00am


None of the government's four proposed options to replace by-elections would stand up to a judicial review, said Alan Hoo, chairman of the Basic Law Institute, which submitted its own proposal yesterday.

Also, the secretary for justice and his department should have oversight of the public consultation on the issue, instead of the secretary for constitutional and mainland affairs, said Hoo, a senior counsel. 'How can Hongkongers respond to the consultation paper without knowing the view of the city's chief legal officer on whether the proposed options are within the law?' Hoo asked.

'Hongkongers must know what is prescribed by the law before they can make their own constructive choices.' The legality of the proposal was the most important consideration, not what the government thought was best, Hoo said. The institute's response comes nine days before the end of the public consultation period on the government's proposal to replace by-elections when a lawmaker resigns. The proposal came after last year's simultaneous resignations of five pan-democrat lawmakers, who were all voted back into office, in what they had hoped would be a de-facto referendum on universal suffrage.

While the government claims by-elections are not required under Hong Kong's mini-constitution, Hoo said they were enshrined in laws carried over from the British Common Law prior to the handover.

Using by-elections to trigger supposed referendums was, however, 'a great intrusion to society in terms of cost and time' and opened the legislative system to abuse, Hoo said.

The institute's solution is to retain by-elections and remove the scope for abuse in a 'restricted and proportional' way. For instance, a lawmaker's voluntary resignation, for whatever reason, would give his or her seat to the next person on the same party list. If no one was on the list, a by-election would be held, but the resigning lawmaker would be ineligible to run for his or her seat. There would be no recourse to candidates on other party lists, which Hoo said would be 'contrary to the voters' intent'.

However, a by-election would be triggered in the event of death or incarceration. 'We approach it on the principle that by-elections must be preserved. As such, you make the most minimum restrictions,' Hoo said. 'This [the institute's] model, as far as we can see, has the best chance to be approved by judicial scrutiny. And judicial scrutiny will come,' he said. 'We don't believe that any existing government option on its own complies with reasonable restriction and a proportionate response.'

Meanwhile, Civil Human Rights Front will organise a protest march against the government proposal on September 24 from East Point Road in Causeway Bay to the new government headquarters. Front member Andrew Shum Wai-nam said police had proposed that the route be changed from Hennessy Road to the more remote Harbour Road.