Hong Kong govt's election delay may be unlawful: Bar association

Hong Kong's leader Carrie Lam postponed the election, citing public health dangers in the Chinese-ruled city. PHOTO: EPA-EFE

HONG KONG (REUTERS) - The Hong Kong government's decision to postpone an election for the city's legislature by a year, by invoking emergency legislation after a spike in coronavirus cases, may be unlawful, the city's bar association said.

Hong Kong's leader Carrie Lam on Friday (July 31) postponed the election for the Legislative Council, or Legco, citing public health dangers in the Chinese-ruled city, but said there were political considerations.

The poll would have been the former British colony's first official vote since Beijing imposed a sweeping security law to tackle what China broadly defines as secession, subversion, terrorism and collusion with foreign forces, with punishment of up to life in prison.

Electoral rules in Hong Kong only allow votes to be postponed for 14 days, but colonial-era laws give the government broad powers in case of threats to public safety.

In a statement on Sunday, the Hong Kong Bar Association said the electoral law was more recent and more specific when it comes to public health hazards at election time and "generally"should take precedence over older legislation.

Invoking emergency legislation to delay the scheduled vote "may turn out to be unlawful", it said.

In response to the comments by the bar association, a Hong Kong government spokesman said yesterday (Aug 3) that postponing the election for 14 days is not a practical solution to this unprecedented problem.

The current wave of Covid-19 infections would likely last for at least several weeks or longer, the spokesman said, noting there may also be a winter surge later in the year.

"If the power to postpone the election for 14 days is repeatedly invoked, it will likely be regarded as a mis-use of power subject to legal challenge. On top of that, it will create highly undesirable uncertainties for all parties concerned," the spokesman said.

On invoking the Emergency Regulations Ordinance to postpone the election, the spokesman stressed that it was the only viable option.

"The legal basis is sound, as the present epidemic situation can be regarded as an occasion of public danger and emergency, and the decision to postpone is in the public interest," the spokesman said.

The State Council, or China's Cabinet, has also expressed support for the decision to postpone the election and undertook "to make a submission in accordance with the law to the Standing Committee of the National People's Congress for its decision", the spokesman added.

Mrs Lam had said earlier that the local government was seeking help from the Chinese Parliament's top decision making body to resolve the legislative vacuum created by the expiring mandate of the Legco

The Hong Kong government "is effectively inviting" Beijing "to override the relevant provisions" of its mini-constitution and local laws "to circumvent possible legal challenges", the Bar Association said.

"This is contrary to the principles of legality and legal certainty and degrades the rule of law in Hong Kong."

The delay in election came after 12 pro-democracy candidates were disqualified from running for perceived subversive intentions and opposition to the security law, prompting questions among many about whether the pandemic was the real reason for the postponement.

The pro-democracy opposition was hoping to win a historic majority in the legislature after an overwhelming win in lower level district council polls last year.

Washington has also condemned the postponement, with Secretary of State Mike Pompeo saying it was likely that "Hong Kong will never again be able to vote - for anything or anyone."

President Donald Trump on Thursday raised the possibility of delaying the Nov 3 US presidential election, but the Constitution bestows that power on Congress, not the president.

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