Hong Kong’s top officials are looking at postponing September’s Legislative Council elections by a year, and are likely to raise the issue to China’s top legislative body for a legal directive to support the decision and resolve any potential constitutional issues, according to sources.
While such a decision could be officially justified on the basis of protecting public health amid a resurgent third wave of Covid-19 infections, it would still be highly contentious with opposition politicians who are banking on a major victory over their pro-establishment rivals.
The official Xinhua news agency reported on Wednesday that China’s top legislative body, the National People’s Congress Standing Committee (NPCSC), would meet again in Beijing from August 8 to 11 to discuss a series of laws. No Hong Kong-related item was on the agenda yet.
While the city’s embattled leader could invoke colonial-era emergency powers to postpone the polls, a government source said Chief Executive Carrie Lam Cheng Yuet-ngor was keen to avoid any legal challenges that might be triggered, and preferred to seek a more authoritative decision from the standing committee itself.
Other sources said Lam and her de facto cabinet, the Executive Council, would convene again after nominations for the elections closed on Friday.
Lam has yet to announce whether the elections will proceed as scheduled on September 6, although her traditional political allies in the pro-establishment camp have repeatedly urged her to postpone them.
Under the Legislative Council Ordinance, the polls can be postponed if the chief executive considers they risk being obstructed, disrupted or seriously affected by severe weather, open violence or any danger to public health, or in case of election-related irregularities.
But voting must be held within 14 days of the original date, or September 20 for the current cycle.
However, emergency powers introduced in 1922 grant the city’s leader the authority to “make any regulations whatsoever which he [or she] may consider desirable in the public interest” in case of “emergency or public danger”.
The Prevention and Control of Disease Ordinance also empowers the city’s leader to act in the interests of public health.
Local NPC deputy Ip Kwok-him, an Exco adviser to Lam, said the government could invoke the emergency powers or other existing laws to call off the elections, but the real issue was what should be done in the interim period.
“If we want Legco to sustain basic functions for a year, we need to solve the issues in the constitutional context,” Ip said. “The Legco Ordinance allows emergency meetings to be convened until the next elections, but that will not be an effective solution.”
Ip suggested the better option would be for the NPCSC to empower Hong Kong authorities to set up a transitional legislature comprised of incumbent lawmakers, which would be equipped with basic constitutional powers, but not a full extension of the current four-year term, which ends on September 30.
Noting that Article 69 of the Basic Law, the city’s mini-constitution, clearly stated each Legco term should last for four years, Ip said there was little room to reinterpret the article. But the transitional Legco could be deemed a special arrangement that would not contravene the Basic Law, he said.
A mainland source noted that if the elections were to be postponed, the NPCSC would help to explain various constitutional issues such as the legal basis for extending the current Legco term, and whether the next legislature should serve a full four-year term, or finish the remaining three years instead.
Lau Siu-kai, vice-president of semi-official think tank the Chinese Association of Hong Kong and Macau Studies, said the involvement of the NPCSC would ensure the local government’s decision could not be challenged at the city’s courts.
“A decision made by the Hong Kong government would be challenged by judicial review for sure, causing more uncertainties,” Lau said. “The involvement of the NPCSC would be an act of state, providing a solid legal foundation for the arrangement.”
Echoing Ip’s views, Lau also expected the country’s top legislative body to either set out the powers of a transitional Legco or officially support an executive order issued by Lam.
After its landslide victory in last November’s municipal-level district council elections, the opposition camp is eyeing its first-ever majority in the legislature, which Lau described as “a fight to seize power” from the central government.
However, Ronny Tong Ka-wah, also an Exco member and a former Bar Association chairman, said he personally believed it would be better for the government to handle any election postponement by itself.
“Hongkongers may be worried about any possible interference by the mainland, while foreign powers may further sanction Hong Kong, under the current tense political environment,” he said. “It might be better just to postpone the elections by three months, so that we can avoid such an interpretation from the NPCSC.”
Tong said Beijing should only step in if the elections were to be postponed by more than six months.
“The interpretation will be on whether the terms of the next Legco will be changed or not,” he said.
He noted that in 2005, after then chief executive Tung Chee-hwa stepped down, citing health reasons, his successor Donald Tsang Yam-kuen had asked the NPCSC to make an interpretation of the Basic Law to clarify how long the term of the city’s next leader should be.
The NPCSC then ruled that rather than serving a full five-year term, the next leader should only serve the two-year remainder of Tung’s term.
Bar Association chairman Philip Dykes was against postponing the polls or asking Beijing to step in.
“Elections ... must be held unless the medical advice is that risk-mitigating measures designed specifically for elections would not work and there would be an unacceptable risk of mass infections,” he said.
Incumbent opposition politicians remained adamant that any postponement would be “a political move” to spare their pro-establishment rivals from defeat, pointing to countries that had gone ahead with their elections under the pandemic.
“I wonder if the government will make use of this gap year to disqualify some of the candidates from the opposition camp,” Civic Party member Tanya Chan said.
The party said it would not rule out challenging the government in court over a postponement.
Wilson Wong Wai-ho, associate professor of Chinese University’s department of government and public administration, suggested extending voting hours and setting up more polling stations to reduce health risks.
Lau dismissed concerns that postponing the elections would spark a further backlash from foreign governments which have taken punitive actions against Hong Kong over its new national security law.
“I don’t think Beijing would consider the reaction of the United States as it is anti-China anyway … Going ahead the elections with many candidates being disqualified would also provoke the US,” he said.
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