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Opinion | Criticisms on the Statement of HKBA

Opinion | Criticisms on the Statement of HKBA

The Hong Kong Bar Association announced a Statement to express its views on the HKSAR Government's decision to postpone the Legislative Council election. Photo: Orange News

By Athena Kung

On 2nd of August 2020, the Hong Kong Bar Association (hereinafter referred to as "HKBA") announced a Statement to express its views on the HKSAR Government's decision to postpone the Legislative Council election. In the HKBA considers there are serious doubts about the legal and evidential basis of the Government's decision. Being a member of the Bar, I have never been consulted by the HKBA in relation to my view on this matter.

The Statement positively identified the right to vote and to stand for election is guaranteed by Article 21(b) of the Hong Kong Bill of Rights, Cap 383, Laws of Hong Kong, and it is a vital constitutional right. Similarly, under Article 26 of the Hong Kong Basic Law ( hereinafter referred to as "HKBL"), it has been stated that, " Permanent residents of the HKSAR shall have the right to vote and the right to stand for election in accordance with law. " In addition, under Article 48(2) of the HKBL, the Chief Executive of HKSAR (hereinafter referred to as " CE") shall be responsible for the implementation of the HKBL and other laws which, in accordance with the HKBL, apply in the HKSAR.

In any event, the HKBA has overlooked the HKSAR Government's duty to secure the permanent HK resident's right to vote includes also the right to vote without any fear of the high infection risk of the COVID-19 as well. If the election really held on 6th of Sept 2020 as scheduled with a lot of Hong Kong people being diagnosed with the new coronary pneumonia after all, would the members of the HKBA who suggested not to postpone the election to bear the whole responsibility for making such a suggestion? To the public's great disappointment, despite of being a so-called legal professional body, the HKBA's such Statement advocates the idea that the Legislative election must take place even at the expense of endangering public health. Clearly, the HKBA's such Statement views human life as worthless.

In reality, the more and more stringent social distancing measures adopted in HKSAR as necessary on recent days would prevent candidates from putting across their manifesto to voters. As a result of the strict boundary control measures, voters in Mainland or abroad would face great difficulties to return to HK to cast their vote. Owing to new crown pneumonia outbreak in more and more elderly homes, it can be anticipated that the senior citizens residing at the elderly home cannot go out to cast vote on 6th of September 2020. In fact, all elderly homes have been adopting the policy that senior citizens living there are not allowed to go out since early 2020. It can further be foreseeable that even the elderly citizens living at their own residence would not go out to cast vote due to the outbreak of new crown pneumonia. Undoubtedly, the HKBA's insisting not to postpone the election amounts to an exploitation of the voters who may not attend the polling stations to exercise their right to vote under Article 26 of the HKBL. Besides, if the HKSAR Government adopts the HKBA's view and not to postpone the election, the CE would then be subject to the criticisms of violating Article 48(2) of the HKBL. Undoubtedly, conducting the election on 6th of September 2020 as scheduled amounts to the CE's failing to discharge the duty to implement the HKBL properly.

On the other hand, the HKSAR Government's decision to postpone the election can definitively prevent further spread of the novel coronavirus in the community effectively. Thereafter, everyone in the society is able to focus on spending all their efforts to unite and cooperate to fight the epidemic.

Under all the circumstances, the current HK epidemic situation can be regarded as an occasion of public danger and emergency. Thus the HKSAR Government's decision to postpone the election is in the best of public interest.

To prepare a Legislative election is really a great task for the HKSAR Government, which needs plenty of time. It is necessary for voters in Mainland China and abroad to have sufficient time to arrange their trip to HK for the election.

HKBA's Statement also expresses the view that the HKSAR Government's action to invoke the Emergency Regulations Ordinance, Cap 241, Laws of HK (hereinafter referred to as "ERO") for the purpose of canceling the scheduled election may turn out to be unlawful. The argument relied upon by the HKBA is that the constitutionality of the ERO [in relation to the Prohibition on Face Covering Regulation (Cap 214K) made in 2019 by the HKSAR Government] is still pending appeal to the Court of Final Appeal.

In fact, as claimed by Maria Tam last year, HK courts do not have the power to rule the legislation to be unconstitutional so long as the said legislation had been examined by the National People's Congress Standing Committee (hereinafter referred to as "NOCSC") and ruled as not violating the HKBL. According to Maria Tam, the NPCSC has fully adopted the ERO which has been ruled as having no conflict at all with the HKBL.

The HKBA further argues in the Statement that generally, a later law which addresses a specific problem would take precedence over an earlier general law. Thus, the Legislative Council Ordinance, Cap 543, Laws of HK (hereinafter referred to as LCO") should have been adopted by the HKSAR Government to postpone the election for 14 days only. The Statement also emphasised that the ERO addresses emergencies and public dangers generally but does not address the specific issue of public health problems at election time.

Indeed, both the ERO and LCO provide the mechanisms to the HKSAR Government to postpone the election under particular circumstances. To determine which mechanism to be adopted to postpone the coming election is more appropriate, the actual situation of the public danger faced must be examined with great care. In the present case, it can be predicted that even the election is postponed for 14 days to 20th of September, no evidence at all supports that the epidemic may have great improvement. In short, postponing the election for 14 days under the ERO would only result in a waste of time and resources for the HKSAR Government. Much inconvenience would also be caused to the candidates who are forced to continue their election campaign under the social distancing measures. In reality, no one can be sure as to whether the election may really take place on 20th of September 2020. Indeed, a government must make prompt decisions so as to show it's great foresight. A responsible government should never make any decision to cause such an uncertainty to any of its citizens.

Hong Kong is an inseparable part of Mainland China. According to Article 1 of the HKBL, " The HKSAR is an inalienable part of the People's Republic of China." Article 12 of the HKBL states that " The HKSAR shall be a local administrative region of the PRC, which shall enjoy a high degree of autonomy and come directly under the Central People's Government." Under Article 31 of the Constitution of the PRC ( hereinafter referred to as " the Constitution" ), it has been stated that "The state may establish special administrative regions when necessary. The systems instituted in special administrative regions shall, in light of specific circumstances, be prescribed by laws enacted by the National People’s Congress." According to Article 67(4) of the Constitution, the NPCSC shall exercise the function and power of interpreting the laws. The above articles in the HKBL or Constitution empower the Central People's Government to exercise its lawful authority to solve the questions arising from the postpone of election for 1 year for HK. Under all the circumstances, it is appropriate for the HKSAR Government to seek the support and guidance of the Central People's Government to deal with the matter.

The author is Barrister-at-law.

The views don't necessarily reflect those of Orange News.

編輯:WHon

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