Hong Kong electoral changes: up to three years’ jail proposed for publicly urging residents to boycott polls or spoil ballots

People who publicly encourage voters to boycott elections or spoil their ballots as a form of protest against Beijing’s drastic overhaul of the city’s electoral system will be committing a crime carrying a jail sentence of up to three years under new legislation unveiled by the Hong Kong government on Tuesday.

Officials also announced three key election dates: the contest for seats on the Election Committee, which has been newly empowered to control all key polls, will be held on September 19; the Legislative Council polls, which was postponed for a year because of the coronavirus pandemic, will be further pushed back to December 19; and the race for the city’s top job will be held on March 27 next year.

An umbrella bill consolidating more than 700 pages of amendments to existing ordinances and subsidiary legislation was gazetted on Tuesday to flesh out details of the broad outlines set by Beijing’s top legislative body last month, in keeping with the official bottom line that only “patriots” would be allowed to administer Hong Kong following the anti-government protest chaos of 2019.

Urging voters to cast blank ballots could be made a crime, Carrie Lam confirms

According to the new details, the system would allow the voter bases for Legco’s trade-based functional constituencies and the Election Committee to be largely dominated by pro-Beijing forces, and publicly calling for blank or invalid protest ballots would become a criminal offence.

“We all want elections to be very fair. Any manipulation to jeopardise or sabotage an election should not be permitted in Hong Kong,” Chief Executive Carrie Lam Cheng Yuet-ngor said at a media briefing to explain the raft of local legislation. “If you do it behind closed doors and among a few friends, then perhaps it’s not an offence.”

Secretary for Justice Teresa Cheng Yeuk-wah said anyone publicly inciting others to boycott voting or cast invalid ballots could be prosecuted. That would include public communication through speeches, broadcasts, screening and playing of recordings, or publishing of materials such as emails or leaflets. 

“Behaviour that can be observed by the public, such as putting up banners outside a flat window to incite others to cast invalid votes will also be illegal,” she said. “Doing some actions and gestures observable by the public, wearing a shirt with slogans, holding flags or wearing accessories carrying those meanings are not permitted as well.”

A paper submitted to Legco further explained that such protest actions during an election period, from the start of nominations until the end of polling day, might create undue pressure on voters and affect their freedom to choose whether to exercise their right to vote.

It noted that anti-China forces and radical local separatists had openly advocated ideas such as independence for Hong Kong through various election platforms, and planned and implemented actions affecting the normal operation of the government.

The paper also cited online calls for people to take away the identity cards of elderly voters ahead of the 2019 district council elections, saying this showed the need for a new law to prevent anyone from intentionally obstructing other people from voting.

The new voting law raised eyebrows and drew instant criticism. 

Political scientist Ivan Choy Chi-keung, from the Chinese University of Hong Kong, said this was unheard of in other countries and suggested that it was only instituted to counter embarrassment over the possibility of low turnout rates.

“In an election, you urge others to support a candidate or you ask others not to vote for him or her. One way or the other, it will have a bearing on the election results,” he said.     

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The new rules will see special priority queues set up in future elections to avoid long waits for voters aged 70 or above, as well as for pregnant women and people with chronic illnesses, injuries or disabilities.

On another significant note, Lam said the government had listened to community feedback and the powerful new vetting committee tasked with weeding out candidates deemed to be unpatriotic or a threat to national security would not be formed entirely by principal officials.

Instead, the city’s leader would appoint representatives of society to the committee, which would be chaired by a principal official and have two to four of principal officials as members. The ex officio members would have to be politically vetted first.

“Having all government officials take up the tasks would make the committee less credible in Hong Kong’s complicated political situation, although I believe officials must conduct the vetting in a fair and just manner,” Lam said.

She added that the vetting committee could also include heads of law enforcement bodies such as police or customs commissioners as they also sat on the Committee for Safeguarding National Security, which the chief executive chairs. 

The vetting committee would be advised by both national security police and the national security committee, with their input kept secret and not subject to legal challenges through judicial reviews.

Candidates’ past words and deeds would be taken into account during the screening process.

Asked about the potential conflict of interest for a sitting chief executive chairing the national security committee to be advising the vetting committee on the eligibility of a rival candidate for the top job, Lam said she would make it an unwritten rule – rather than including it in the legislation – that all incumbent leaders should withdraw from discussions involving his or her own case.

“Sometimes, there might be adverse consequences if things are clearly written into the law. I make it very clear now … it is my view that if any incumbent chief executive seeks re-election, he or she should not get involved in that particular discussion,” she said.

“But it will be against the requirements of accountability if the city’s leader walks away from his or her constitutional responsibilities simply because of the worry over conflicts of interest.” 

Lam noted that a robust system was already in place for officials to declare possible conflicts of interest. 

Lam’s government also laid out detailed arrangements for September’s polls for the expanded 1,500-strong Election Committee. 

All members will be required to sign a written oath of allegiance to the Hong Kong special administrative region and promise to uphold the Basic Law, the city’s mini-constitution.

The secretary for justice may take legal action to immediately suspend any member deemed to have broken the oath.

The committee has been newly empowered to nominate all candidates for Legco elections, while picking 40 members through block voting from its own ranks to sit in the legislature. That means each committee member can select 40 candidates, and the 40 with the most votes in the end will win the Legco seats.

The Election Committee will continue its current role of choosing the chief executive.

The boundaries of geographical constituencies for Legco elections will also be redrawn, with the five current ones set to be divided into 10, each with two seats. 

The New Territories will be split into five new constituencies, while three will be demarcated for Kowloon and two for Hong Kong Island. Two lawmakers will be returned from each constituency.

Lam said the new constituencies were created by combining smaller existing constituencies demarcated for past district council polls. They took into account the size of the population to ensure a fair distribution, with around 600,000 to 800,000 voters in each constituency, she said.

“We are following the established rule that is within a range … it would not have a district that is too huge, too large, and another one which is too small,” she said.

 Additional reporting by Chris Lau