Banning lawmakers who quit from by-elections 'reasonable', judge says

PUBLISHED : Thursday, 06 March, 2014, 3:01am
UPDATED : Thursday, 06 March, 2014, 4:25am

A law that bars legislators who quit from running in a by-election for the next six months does not violate the constitutional right to stand for election, the High Court ruled yesterday.

Mr Justice Au Hing-cheung dismissed a judicial review, sought by Cheung Chau resident Kwok Cheuk-kin, over a 2012 amendment to the Legislative Council Ordinance.

Au ruled that the change, introduced after five lawmakers quit in 2010 then ran for their old seats in what was described as a "de facto referendum" on universal suffrage, was "proportionate".

"[The] proper place to resolve this political issue is Legco and not the court, unless the court comes to the view that the restriction is manifestly without reasonable foundation," Au said in a written judgment.

The government introduced an amendment to the ordinance in June 2011 to avoid a repeat of the "referendum". Lawmakers approved the bill in June 2012.

Lawyers for the government said in the December judicial review hearing that the aim of the amendment was to deter lawmakers from quitting to trigger by-elections, which would unnecessarily drain public resources and deprive constituents of representation for a period. A six-month restriction was not unreasonably long, they said.

Ruling in favour of the government, Au wrote: "[It] is in my view within the spectrum of reasonableness that one may regard the conduct or act of a Legco member who resigns voluntarily in order to trigger a by-election as an abuse of and having a negative effect on, the working of the electoral system, which would further lead to less respect and faith in the system."

Au ordered Kwok to pay the government's legal costs.

The 2010 by-elections cost HK$126 million and was not seriously contested by Beijing-loyalist parties. Despite the law change, some pan-democrats have suggested a repeat of the "de facto referendum" to gauge views on electoral reform proposals the government is expected to put forward later this year.