Nothing to do with politics? Seven flaws in the decision to cancel Hong Kong’s legislative election

By Kenneth Ka Lok Chan and Ip Ka Yan

Hong Kong’s government on July 31 invoked the Emergency Regulations Ordinance to postpone the 2020 Legislative Council (LegCo) election for a year. The polling day was effectively changed from this Sunday to September 5, 2021.

Chief Executive Carrie Lam has been quoted as saying: “It is a really tough decision to delay, but we want to ensure fairness, public safety and public health.” She talked about the high risks of mass infection on polling day, the disruptions which social distancing measures would cause to canvassing and face-to-face campaigns, and above all, the additional obstacles that voters who live in China and other parts of the world would have to overcome due to the mandatory quarantine measures.

Notably, Lam insisted that “the decision to postpone the 2020 LegCo election has nothing to do with politics, has nothing to do with the likely outcome of this round of elections. It is purely on the basis of protecting the health and safety of the Hong Kong people and to ensure that the elections are held in a fair and open manner.”

Public health threats from the pandemic could be a legitimate reason to postpone elections, not least because holding them on schedule without adequate preparations and resources may have an adverse effect on participation, undermining the credibility of the result with a low turnout. For developing nations, holding an election may also divert human resources and material resources from more urgent tasks.

But elections are political events, so the decision to postpone or hold them as planned has everything to do with politics. Lam’s eagerness to distance herself and her decision from politics calls for attention. For one thing, governments that can wield the powers to manage the crisis with emergency measures tend to have an advantage over the opposition.

For another, if a government and its supporters are known to be unpopular, postponing elections may be perceived by citizens to be depriving the opportunity to express approval or disapproval of the representatives or incumbent government and to change the policies that are seen to be ineffective or unpopular. It is not surprising that incumbent leaders and their supporting parties who happen to be held by the people in low esteem are prone to be accused of political opportunism.

What is at stake here is electoral integrity. In May, the Kofi Annan Foundation issued an open letter, Democracy must not become the silent victim of the coronavirus pandemic, to raise awareness that in some cases “hard won rights are being swept aside by emergency measures, elections postponed indefinitely, or held under problematic conditions, and essential freedoms eroded.”

International human rights experts have repeatedly called for human rights to be put “front and centre” amid the coronavirus pandemic across the globe. For its part, the Hong Kong Bar Association considers that “there are serious doubts about the legal and evidential basis of the government’s decision,” and slams the government for “effectively inviting the Central Government to override relevant provisions of the Basic Law and Hong Kong legislation to circumvent possible legal challenges,” which “is contrary to the principles of legality and legal certainty and degrades the rule of law in Hong Kong.”   

With reference to international norms and obligations, the Election Observation Project (EOP) has subjected Carrie Lam’s claim — that its decision to postpone the election has nothing to do with politics — to an evidence-based scrutiny and we have found seven flaws in her line of argument as follows:

• Cherry-picking global data: Global experiences do not lend categorical support to the government’s decision to postpone the election, as it has wished to claim. As of August 25, at least 70 countries and territories across the globe have decided to postpone national and subnational elections due to Covid-19; but the fact that at least 75 countries and territories have decided to hold national or subnational elections amid Covid-19 was dismissed by Lam and her government as irrelevant to Hong Kong.

• Failure to consult experts: The government’s decision was not backed up by any advice and input from public health experts or policy experts in electoral affairs. Carrie Lam admitted at the press conference on July 31 that she did not seek advice from the Expert Advisory Group [on Covid-19] before reaching her decision to cancel the election, stating that “the experts were not interested in political issue.” The government has been unable to explain why it failed to consult its own public health experts or the Centre for Health Protection as promised earlier before arriving at the decision to cancel the poll.

• Misinformation and scaremongering campaigns: Although medical experts have produced evidence that the government’s policy to exempt more than 40 categories of people to freely enter and leave the territory from mandatory quarantine or stringent health certifications is responsible for the recent wave of community outbreak, the pro-Beijing camp has continued to spread unsubstantiated claims that the third wave resulted from the opposition’s primaries on July 11-12, in order for them to present the LegCo election as a serious threat to public health and people’s lives. The pro-Beijing camp is never interested in a rational policy discussion when medical experts have on numerous occasions expressed the view that Hong Kong could hold the election safely with the help of mitigation measures and public education.

• Politically motivated: The government cannot possibly distance itself from the pro-Beijing camp which in mid-July began a concerted campaign to demand the postponement of the election, saying that hundreds of thousands of voters who live in China are unlikely to come back due to the 14-day mandatory quarantine. Some groupings stepped up the attack on the Electoral Affairs Commission (EAC), demanding the resignation of its chairman and the dissolution of the body. The government said or did nothing to stop its supporters from hurling accusations at the EAC, a statutory body set up to manage elections and advise the government on electoral affairs.

• Unprecedented disruptions to electoral order: The government’s decision to postpone the election was announced on the same day as the end of the nomination period, which gathered a total of 184 prospective candidates, and more than four weeks before the scheduled polling day. The existing electoral laws and regulations give the government the power to postpone the election by 14 days. But Carrie Lam chose to resort to the Emergency Regulations Ordinance to halt the election. Given the legislature’s four-year fixed term of office, the government must request the Central People’s Government to decide how to fill an institutional void. The precarious decision has not only led to disruptions to the existing constitutional and legal order, but resulted also in Beijing’s direct involvement in the electoral cycle.

• Failure to conduct public consultation: Preparations for holding the election as planned were underway in accordance with a range of public health measures designed by the Electoral Affairs Commission (EAC). The government announced its decision without making any attempt to conduct an informed consultation with the Hong Kong citizens, including more than 4.4 million registered voters.

• Lack of consensus: There was no attempt by the government to seek a cross-party consensus, nor was there an effort to involve all political parties and stakeholders in the discussion leading to the postponement. The decision was announced as a fait accompli, making it difficult to garner the needed legitimacy for its decision which is widely perceived as an act of electoral manipulation. The postponement has given rise to complicated legal questions and triggered political disputes in society.

Like it or not, to postpone elections or to hold them as planned amid the pandemic is essentially a political act. The available information and evidence allows us to refute the government’s claim that its decision was based solely on public health. It is a remarkable fact that whilst the government wanted people to believe that its decision to delay an election was based on public health concerns, Carrie Lam was determined not to seek advice from the medical experts.

Clearly, global experiences do not give the government a convenient pretext to postpone the election, not least because Hong Kong does have the capacity to mitigate the risk of transmission during the electoral process. Perhaps it is not a coincidence that the only political camp which applauded the decision was the pro-Beijing, pro-government camp which had launched a concerted campaign for the postponement since the second week of July.

Sadly for Hong Kong, the decision to postpone the election for a year has failed to meet the principles of proportionality, necessity, predictability, consensus and the rule of law. Cancelling the LegCo election after disqualifying 12 opposition candidates proves how rapidly our city is going down the path of autocracy. And that has everything to do with politics.

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Kenneth Chan is Associate Professor and Director of Comparative Governance & Policy Research Centre at the Department of Government & International Studies, Hong Kong Baptist University. He is a founding member of the Electoral Observation Project. Ip Ka Yan is a Long-Term Observer and Researcher with the Election Observation Project.‘

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