Criminalising encouraging Hong Kong voters to boycott elections or spoil ballots will create ‘real constitutional problems’, legal experts warn

Legal scholars have warned of “real constitutional problems” in new legislation proposed by Hong Kong authorities that would make it a criminal offence for people to encourage voters to boycott elections or spoil ballots as a form of protest against Beijing’s overhaul of the city’s electoral system.

They raised concerns about the pitfalls of creating an incitement offence for acts that would otherwise be legal in themselves, as the government on Wednesday tabled an umbrella bill in the Legislative Council consolidating a host of legal amendments and subsidiary legislation to implement Beijing’s shake-up of the system. 

The proposed ban also raised questions on the legality of hypothetical situations, and prompted online users to float ideas on how to convey their political messages in coming elections without falling foul of the new law. 

Under the amendments to the Elections (Corrupt and Illegal Conduct) Ordinance, inciting others “not to vote, or to cast invalid votes” through public activities during an election period will be considered illegal, and punishable by up to three years in prison.

The bill stipulates “activity in public” as: any form of communication to the public, including speaking or other recorded material; any conduct observable by the public, including actions and gestures; and the distribution or dissemination of any matter to the public.

Simon Young Ngai-man, associate law dean at the University of Hong Kong, told the Post the proposed offence was “problematic” as it did not specify the required mental element.