By-election ban would curb right to vote, Bar says

PUBLISHED : Sunday, 19 February, 2012, 12:00am
UPDATED : Sunday, 19 February, 2012, 12:00am


The Hong Kong Bar Association says it is not convinced by the government's arguments to stop lawmakers who resign mid-term from standing in by-elections for six months.

It argues that the amended proposal would curtail the right of voters to elect their preferred candidates.

In a statement issued yesterday, the association urged the government to maintain the status quo and 'not introduce changes just for the sake of appearing to have introduced changes'.

The government proposed the latest amendment on the electoral law last month to ban lawmakers - regardless of whether they were elected in geographical or functional constituencies - from standing for re-election within six months of resigning. The proposed change is aimed at stopping lawmakers triggering by-elections for their own reasons and then getting re-elected.

It said the amendment was to stop what it labelled a 'mischief'' when five pan-democratic lawmakers in 2010 triggered by-elections in what they dubbed a de facto referendum on the pace and scope of democratisation.

But the association said it was not convinced the lawmakers' resignations would be regarded as a 'mishchief' in the eyes of the law and did not justify legislative intervention in a way as to interfere with a fundamental constitutional right.

Secretary for Constitutional and Mainland Affairs Raymond Tam Chi-yuen maintained yesterday that the government was confident the latest amendment could weather a legal challenge in the courts and gain support from lawmakers. He said the government had sought independent legal advice from Lord David Pannick QC - who said the plan had imposed 'mild, proportionate and reasonable restrictions' to prevent lawmakers abusing the system.

Meanwhile, Tam said the court would give discretion to the administration and legislature in deciding on the scope of limitation of people's right to stand in elections.

But the association disagreed. 'The Bar Association would like to point out that, at the end of the day, whether a matter constitutes a 'mischief' for the purpose of constitutional analysis is ultimately a matter for the courts.'

The association also argued that the government did not provide a reasonable explanation or rational justification for why a lawmaker resigning for health or other personal reasons should be denied the right to stand for a by-election. It said health and other personal reasons leading to the resignation might have disappeared in six months, and therefore there would be 'no justification to prohibit them from standing in the by-election as such'.

The association also disagreed with the government that 'the only persons affected are the resigning members' as it argued the amendment would also curtail the electors' choice of candidates and consequently restrict their right to vote.

Tam said the people's right to vote would not be affected as the by-elections system would be retained.

Civic Party lawmaker Audrey Eu Yuet-mee, a former chairwoman of the association, criticised the amendment, saying it 'robbed the people's choice' and urged the government to leave the decision to voters as to whether they would endorse the re-election of lawmakers who had resigned.

The amendment is under scrutiny in the legislature and the government expects lawmakers to vote on the bill in this legislative term - which ends in mid-July. A government spokesman said it would discuss the amendment with lawmakers and examine the association's statement carefully.