Top Hong Kong court to decide if ban on resigned lawmakers standing in by-elections is unconstitutional

A judicial review on the matter will be held next June, after the legal action was launched by Cheung Chau resident Kwok Cheuk-kin

PUBLISHED : Thursday, 29 September, 2016, 6:41pm
UPDATED : Thursday, 29 September, 2016, 10:44pm

Hong Kong’s top court will consider next year whether lawmakers who resign can re-enter the legislature through by-election under the Basic Law, despite concerns about the court’s interference in such a highly political matter.

On Thursday, the Court of Final Appeal gave its permission for an appeal filed by Cheung Chau resident Kwok Cheuk-kin to go ahead next June over his claim against a controversial ban on resigned lawmakers’ standing at by-elections. The court said the issue involved a question of public importance and so will pursue it.

The top judges were responding to Kwok, who has regularly challenged the government’s decisions in the past, who claims that an amendment made in 2012 to the Legislative Council Ordinance was inconsistent with Article 26 of the Basic Law which guarantees the right of Hong Kong permanent residents to stand for election “in accordance with law” and Article 21 of the Hong Kong Bill of Rights Ordinance which gives that right “without reasonable restrictions”.

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The amendment was made after five then legislators from the Civic Party and League of Social Democrats – Tanya Chan Suk-chong, Albert Chan Wai-yip, Alan Leong Kah-kit, Leung Kwok-hung and Wong Yuk-man – resigned en masse from each of the city’s five geographical constituencies to trigger a de facto referendum in 2010 to prompt what they called a “referendum” on the political reform proposal that the government was tabling for discussion at the time.

As other political parties did not contest the polls, all five were voted back into office. But turnout was a record-low of 17 per cent.

Kwok’s first judicial challenge against the ban was dismissed by the Court of First Instance in 2014. The lower court said that the amendment served a legitimate aim – to ensure a fair and effective electoral system.

On Thursday, barrister Hectar Pun Hei SC, for Kwok, argued that blanket prohibition, without valid reasons being given in each case, was “unconstitutional”.

The top court judges asked whether allowing resigned lawmakers to join by-elections would be prone to abuse, the lawyer said: “The work of the Legislative Council has not been affected.”

The judges questioned whether the Basic Law right to stand for election also covers holding a referendum that pursues political purposes.

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The government argued that the replacement mechanism in question complies with the Basic Law and the Hong Kong Bill of Rights.

Barrister Johnny Mok SC, representing the government, said lawmakers who resigned with a political motive and participated in a subsequent by-election were abusing their rights.

Chief Justice Geoffrey Ma Tao-li stated that it would be difficult to draw the line at determining whether by-elections triggered by lawmakers’ resignations would constitute abuse.

“[The decision] is best left to the executive and the legislative branches,” Ma said, adding that the court should not be involved in politics.

But after deliberation, judges concluded that the ban would lead to a question of public importance.

The court will examine the issue on June 20.

In response, the Constitutional and Mainland Affairs Bureau, responsible for the matter, said it would not comment since the case had already entered judicial proceedings. The Department of Justice also declined to comment on the lawsuit.