The government sidestepped questions yesterday on whether it would retain by-elections to fill Legislative Council vacancies if the vast majority of people said in a consultation exercise that they wanted to keep them.
At the same time, a former Bar Association chairman warned that all the alternatives might violate the Basic Law.
The government is seeking the public's views on whether what it says is a loophole that enables abuse of by-elections needs to be closed, or if the status quo of holding by-elections to fill Legco vacancies resulting from resignations should stand.
The move follows the resignations last year of five lawmakers, who hoped the subsequent by-elections would be a de facto referendum on democracy.
Stephen Lam Sui-lung, Secretary for Constitutional and Mainland Affairs, insisted the government had a duty to close the loophole.
'The risks would become particularly serious for the five 'super seats' in the district council functional constituencies in next year's Legco election,' he said. 'If a lawmaker occupying those seats resigned, it would trigger a territory-wide by-election.'
The consultation document gives four options for filling vacancies arising from resignation, death or illness.
One option is to give the seat to the departing candidate's running mate in the previous election; another is to restrict legislators who resign from standing in any by-election in the same Legco term; a third is to hold a by-election only in the event of death or serious illness; and the other choice is to leave the seat vacant if all candidates from the departing lawmaker's list are unwilling to serve.
Civic Party lawmaker and former Bar Association chief Ronny Tong Ka-wah warned all four options may breach the Basic Law, which stipulates Hong Kong residents have the right to vote and run in elections. Fellow Civic Party legislator Audrey Eu Yuet-mee said: 'The government has a duty to clear the question of constitutionality before laying out the consultation document.'
Even Beijing loyalist Wong Kwok-hing, of the Federation of Trade Unions, was angry that the government failed to clear the constitutionality of the consultation document before releasing it. 'What will happen if most people responding to this consultation say they prefer option four, but then you find it unconstitutional later?' Wong said. 'Would the government have to overhaul it?'
Lam did not respond directly when asked if the government would retain by-elections if most people in the two-month consultation favoured the status quo - or if the administration would withdraw the bill that seeks to scrap the practice.
The minister cited findings of surveys conducted by the Liberal Party and the New Territories Association of Societies to say a 'strong body of public opinion' wanted the government to come up with steps to prevent further abuse of by-elections.
The two surveys were conducted using an automated telephone system. Dr Li Pang-kwong, director of Lingnan University's public governance programme, said the credibility of polls done using this system could not be compared with those conducted through real interviews.
'The government is defeating its original purpose of showing that the consultation is a sincere effort to canvass public views by selective citation of those survey findings,' Li said.