Hong Kong has defended its decision to invite Beijing to resolve legislative matters arising from the election delay after the city’s professional body of barristers said the move would effectively “override” provisions in the mini-constitution.

Last Friday, the government announced that September’s legislative race would be postponed for a year owing to a resurgence in the coronavirus. But democrats decried the move as part of a crackdown on dissent following Beijing’s enactment of sweeping national security legislation in the city.

Court of Final Appeal
Court of Final Appeal. File photo: GovHK.

Chief Executive Carrie Lam told the press last week that she would invoke the Emergency Regulations Ordinance (ERO) to suspend September’s vote. The emergency power was last used to outlaw mask-wearing in a bid to quell citywide pro-democracy protests; however, the constitutionality of the ban is pending appeal at the Court of Final Appeal.

“The HKSAR Government’s action to invoke the ERO for the purpose of cancelling the scheduled election may turn out to be unlawful,” the Hong Kong Bar Association (HKBA) wrote in a statement on Sunday.

The Association also questioned the decision to delay the ballot by one year, not 14 days, as specified by provisions in the Legislative Council Ordinance which enables election delays due to public health concerns: “The HKBA notes with concern that the HKSAR government has apparently not consulted with civil society. The HKSAR government indicated that it did not consult with relevant experts on the appropriate balance to be struck between protecting public health and protecting the constitutional right of Hong Kong residents to participate in elections,” it added.

“There is also little evidence that the HKSAR government has considered alternative measures to alleviate the possible health risks.”

‘Degrades the rule of law’

Article 69 of the Basic Law stipulates that lawmakers serve a term of no more than four years in the Legislative Council (LegCo) . The Standing Committee of the National People’s Congress in Beijing will, therefore, step in to handle a potential lacuna left by the gap, Lam said.

carrie lam
Carrie Lam. Photo: GovHK.

But the HKBA expressed alarm, saying LegCo elections were within the autonomy of the SAR: “Instead of abiding by the express provision of the Basic Law, the HKSAR government is effectively inviting the central government to override the relevant provisions of the Basic Law and Hong Kong legislation to circumvent possible legal challenges… “This is contrary to the principles of legality and legal certainty and degrades the rule of law in Hong Kong.”

The HKBA has repeatedly expressed concern over constitutional and legal problems arising from the Beijing-enacted national security law, criminalising secession, sedition, terrorism and foreign interference in the city. It was introduced after months of sometimes violent pro-democracy demonstrations.

Philip Dykes
Hong Kong Bar Association Chair Philip Dykes. Photo: Citizen News.

In a response on Monday night, a government spokesperson said the election delay was a legal response to the current Covid-19 situation and a potential winter surge.

They said that extra polling days, postal voting or e-voting were not practical and delays of just 14 days using emergency powers “will likely be regarded as a mis-use of power subject to legal challenge.”

The spokesperson added that the State Council in Beijing supported the delay and had constitutional authority to advise on the legislative interim arrangements since Hong Kong as part of China: “We do not see how this is contrary to the principles of legality and legal certainty and degrades the rule of law in Hong Kong as alleged by the Association.”

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Jennifer Creery is a Hong Kong-born British journalist, interested in minority rights and urban planning. She holds a BA in English at King's College London and has studied Mandarin at National Taiwan University.