MR Justice Mayo's decision to refuse a judicial review of the disqualification of three potential candidates for the District Board elections, legally correct though it may be, has produced an unsatisfactory result. The High Court judge held that the only way of challenging the disqualification was through an election petition - after the poll has been held.
The effect of the decision is to deny the potential candidates the opportunity to benefit from full-scale election campaigning and heightened voter interest that will not exist if their petition is successful and by-elections are held. Viewed in the context of notions of the democratic process - rather than the letter of the law, which the judge must consider - this is a disappointing outcome.
Not surprisingly, the Government has welcomed the ruling. It was in line with the Government's own legal advice and it means that it can go ahead and hold the elections without interruption. The Government undoubtedly also welcomes the effect of the ruling, for it has been spared the embarrassment of having a man whom China regards as a counter-revolutionary - former political prisoner Lau Shan-ching - running in the full glare of the first elections to be held under the banner of Chris Patten's electoral reforms. Ironically, the first of Hong Kong's more-democratic elections has highlighted the anti-democratic nature of one of the territory's laws.
The three applications to stand were rejected on the ground that they had not been ordinarily resident in Hong Kong for the past 10 years, as the electoral law requires. The legal tussle over their assertion of their civil rights will go on. The Government will continue to be a party in the proceedings - opposing the potential candidates - but it should not allow itself to get locked in to an antagonistic position merely because it feels it has to defend the law as it stands.
Instead, it should be asking itself whether the 10-year rule is appropriate in a territory which is trying to strengthen its democratic framework. It might consider whether the law is in conflict with the Bill of Rights, which spells out every permanent resident's right to stand for election without unreasonable restriction. Is a law reasonable which could bar someone who has spent some years overseas studying? Or furthering a career? Or caring for a sick relative? Or locked in jail for a crime Hong Kong does not recognise? The Government might ask whether the requirement to be ''ordinarily resident'' here is fair and sensible at all. It is out of step with most democracies, which have a citizenship requirement: a citizen is allowed to stand for election, even if he or she has just stepped off a plane after years elsewhere. The nearest thing to citizenship in Hong Kong is permanent resident status and that should be sufficient qualification. If the voters think a candidate who has lived overseas for years is out-of-touch, they can reject him. But it should be the voters' right to reject the candidate: that right of choice should not be taken from them by an arbitrary law as interpreted by a civil servant.
Here is the crux of the matter for the Government: is this law in keeping with the spirit of the electoral changes just introduced? Anyone who can answer ''yes'' to that question must have been asleep for the past two years.