The government's proposal to scrap by-elections breaches the Basic Law, the Bar Association said yesterday.
In a submission to the Legislative Council, the body representing the city's barristers said the proposal was incompatible with articles 26 and 68 of the Basic Law. The first of those states that Hong Kong permanent residents should have the right to vote and to stand for election, while the second declares Legco should be constituted by elections.
The Bar Association also said the proposal would go against the United Nations' International Covenant on Civil and Political Rights, to which Hong Kong is bound.
The government moved to scrap by-elections after five legislators from the Civic Party and League of Social Democrats quit their seats last year to force by-elections they hoped would serve as a referendum on the pace and scope of democratisation in Hong Kong. But none of the other major political parties took part in the exercise and the five were easily re-elected. But turn-out was low and the government called the exercise a waste of money.
The government proposes that instead of holding a by-election when a legislator in one of the geographical constituencies dies, resigns or is disqualified from office, the next-best-placed candidate from the previous election fill the vacancy, regardless of their political affiliation.
In its submission, the association said: 'The mechanism does not serve to express the free will of the electors. Rather, it forces the choice of the back-up candidate upon them by operation of law. The electors are deprived, in substance, of their right to vote for the candidate to fill the vacancy.'
The association said the replacement mechanism could not be interpreted as 'election', as the voters would not know who might end up being the back-up candidate at the time of voting, and the votes cast could not reflect their will.
Those who wished to seek election when a vacancy arises would also be deprived of their right to stand for election, the association said.
The Constitutional and Mainland Affairs Bureau disputed the association's interpretation, saying the government had taken legal advice and that the proposal conformed with the Basic Law. 'The replacement mechanism can reflect the voters' general will,' bureau chief Stephen Lam Sui-lung told legislators.
But pan-democrat lawmaker Cyd Ho Sau-lan said the government should take the association's views seriously. She will discuss the matter with other pan-democrats before they decide whether to take legal action against the government.
Meanwhile, 63 university academics signed a petition urging the government to drop the proposal. They said it could undermine the political foundation in Hong Kong.
The academics include some, such as Dr Fung Wa-wah of City University, who opposed last year's by-election campaign.
Professor Joseph Cheng yu-shek, a political scientist at City University, said the government's proposal was absurd and unhealthy.
'The essence of election is to let the public choose who will represent them. It's shocking the government is doing this now. It's rocking the foundation of Hong Kong.'
It's shocking the government is doing this now.