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Basic Law

The Basic Law was drafted as part of the Sino-British Joint Declaration covering Hong Kong after its handover to China on July 1, 1997. The joint declaration stated that Hong Kong would be governed under the principle of ‘one country-two systems’ and would continue to enjoy its capitalist system and individual freedoms for 50 years after the handover.

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Legco ordinance on by-elections challenged in judicial review

PUBLISHED : Tuesday, 10 December, 2013, 7:09pm
UPDATED : Tuesday, 10 December, 2013, 7:09pm

The Legislative Council Ordinance introduced last year to prevent lawmakers who resign from standing in a by-election within six months was unlawful, a Cheung Chau villager challenged in a judicial review on Tuesday.

Lawyers for Kwok Cheuk-kin said the law change imposed restrictions on people’s right to vote and to be elected. The restriction was without a “legitimate aim” and “disproportional” and therefore illegal, they said.

The change in the law was intended to prevent a repeat of the 2010 “de facto referendum”, which saw five pan-democratic lawmakers quit and contest their seats again in a protest calling for greater electoral reform.

The court heard that the government had told lawmakers that the change was meant to prevent abuse of process. Government lawyers told the court it was also made to improve the electoral system.

Barrister Hector Pun Hei, for Kwok, who was on legal aid, said people’s right to vote and to be elected was guaranteed by Article 26 of the Basic Law.

He said suggestions that there would be reoccurrence of lawmakers quitting to stand for re-election was “pure speculation”.

“The restriction is simply disproportionate,” Pun said.

He said there was an in-built mechanism to resolve political issues and for those lawmakers who quit for legitimate reasons to stand for re-election again.

David Pannick QC, for the government, said the court should give the legislature a “broad margin of discretion” in making the law, especially in socio-economic issues.

“[The lawmaker] has no duty to resign. He has no obligation to resign. He knows clearly what the consequences would be. He could choose not to resign,” Pannick said.

But Pun said: “It is for the court to protect the rights of citizens.”

He said the margin of discretion that the court deferred to the legislature did not prevent the court from declaring a law unlawful when it was clearly disproportionate.

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