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Sunday, Nov 01, 2020

Hong Kong barristers cast doubt on legality of Carrie Lam’s election move

Hong Kong barristers cast doubt on legality of Carrie Lam’s election move

Bar Association has serious concerns over decision to delay Legislative Council elections for a year in face of growing Covid-19 crisis.

Hong Kong’s Bar Association has expressed “grave concern” over the government’s move to postpone the Legislative Council elections
for a year, casting “serious doubts” on the legal and evidential basis for the decision.

The professional body of barristers also criticised the government for asking mainland China’s top legislative body to rule on resolving any legal issues stemming from the postponement, saying the matters were within the autonomy of Hong Kong.

“The association considers that there are serious doubts about the legal and evidential basis of the government’s decision,” it said in a statement on Sunday evening.

Hong Kong’s leader, Carrie Lam Cheng Yuet-ngor, set off a political storm on Friday by invoking emergency powers to postpone the September election, citing the risk of further escalating the Covid-19 crisis.

Recognising the problem this would create because of the four-year term limit in Legco term under the Basic Law, the city’s mini-constitution, Lam asked Beijing to step in.

But by making that request, the Bar Association said the Hong Kong government was “effectively inviting the central government to override the relevant provisions of the Basic Law and Hong Kong legislation to circumvent possible legal challenges”.

It added: “This is contrary to the principles of legality and legal certainty and degrades the rule of law in Hong Kong.”

The association said it was concerned the government had not consulted society at large, or the relevant experts, on the appropriate balance between protecting public health, and protecting the constitutional right of the city’s residents to take part in elections.

There was also little evidence the government had considered alternative measures to alleviate the possible health risks, it added, and accused authorities of failing to satisfactorily explain why the election had to be postponed for a year, instead of just weeks or months.

While there were countries that postponed their elections because of the outbreak, it said, there were also countries with worse outbreaks that held elections in recent months.

Many countries that have postponed their elections have done so for much shorter periods, it added.

The government has not made use of existing provisions in the Legislative Council Ordinance to postpone the elections at times of danger to public health, it said.

International human rights experts have repeatedly warned governments not to use the Covid-19 outbreak as a pretext to suppress human rights, it added.

Lam has said the decision to postpone was made only for the sake of public health, and there no political considerations were involved.

She said her administration decided against using the Legislative Council Ordinance to postpone the elections because it would only allow the vote to be delayed for 14 days.

In his Sunday blog, Lam’s deputy, Matthew Cheung Kin-chung, said the decision to postpone was a “very difficult” one to make, and there was “absolutely no political considerations”.

Lam’s decision triggered outrage among opposition politicians, who had hoped to win an unprecedented majority in the 70-seat legislature, buoyed by their trouncing of pro-establishment rivals in last year’s district council elections.


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