Solid legal basis for election postponement and current LegCo to continue performing duties

There is a need to postpone the seventh-term of the Legislative Council (LegCo) election, amidst the third wave of COVID-19, to ensure that public safety is protected as well as a fair and open election can be conducted. The Standing Committee of the National People's Congress (NPCSC) has made a Decision that the sixth-term LegCo be extended for no less than a year to address the lacuna in the LegCo operation caused by the postponement.

When the epidemic is still widespread in the community, if the election is held as scheduled, group gatherings caused by electioneering activities by candidates would raise the risks of the spread of COVID-19. Yet while the regulations on the restrictions on group gatherings are still effective, the electioneering activities could not be conducted properly by candidates. Further, with four million voters all gathering to vote at polling stations on the same day, it might cause an outbreak in the community. Elderly voters might refrain from voting due to health consideration. Another phenomenon is that there is a large number of voters in the Mainland and stranded overseas who could not return to Hong Kong to cast their votes due to border control.

Reasons for postponing for one year include: the pandemic is unlikely to subside soon. It is unrealistic to invoke section 44 of Legislative Council Ordinance to postpone the election for 14 days repeatedly. Secondly, postponing the election for one year, with a particular date identified, would give certainty to all parties concerned. Thirdly, voter registration exercise usually takes months to finalise. Those who are eligible but have not yet completed the registration would not be able to exercise their right to vote if the election is to be held in early 2021. Fourthly, the LegCo performs important functions and it is important to ensure its proper functioning. It considers the Chief Executive’s Policy Address from October to November and scrutinises the Budget from around February to May every year. Postponing the election for a year provides the certainty for the LegCo to continue to function according to its annual cycle. Last but not the least, existing LegCo members would not be able to conduct electioneering activities if the election is to take place in the middle of the cycle.

The Chief Executive in Council decided to postpone the election so as to safeguard public interests in the light of the risk to public health and the emergency of the situation. The Emergency Regulations Ordinance allows the Chief Executive in Council to legislate speedily and effectively under such circumstances. Owing to the severe epidemic situation, the Chief Executive in Council invoked the Emergency Regulations Ordinance to postpone the election for a year in order to protect public safety and public health as well as to ensure that a fair and open election can be conducted. The Chief Executive, as the head of the HKSAR and being accountable to the Central People’s Government under Article 43 of the Basic Law, submitted a report and suggestion to the Central Authorities on July 28. On the following day, the State Council expressed its support to the resolution by the Chief Executive in Council and agreed to make a submission to the NPCSC for a decision.

China is a unitary state and the constitutional structure stipulates that power comes from the Central Authorities. Matters relating to constitutional order should be handled by the National People’s Congress (NPC) in accordance with the Constitution of the People’s Republic of China (PRC). The NPC and the NPCSC are powered to make legal decisions or instruments.

The Decision by the NPCSC, which has been made in accordance with the PRC Constitution and the Basic Law, expeditiously resolved the problem that the HKSAR could not handle on its own from a constitutional perspective. The sixth-term LegCo would continue to function for no less than one year until the beginning of the seventh-term, thereby providing flexibilities and a solid legal basis to the Government. The Decision also stated clearly that the seventh-term LegCo would have a term of four years as set out in Article 69 of the Basic Law, which obviates the need to amend the Basic Law. One must not forget that the Basic Law is a constitutional document and it is uncommon to amend it for a single one-off instance. The Decision provides a legal basis which is binding and deals with the special situation. It is right and proper that the NPCSC resolved the constitutional matter by the Decision.

The rule of law is well established in Hong Kong. When the Government realises that it does not have the power to resolve issues related to the lacuna arising from the postponement of the election, it is necessary for the highest state organ of power to handle the matter in accordance with the PRC Constitution and the Basic Law. In a judgment of a judicial review delivered in 2018 (HCAL 1160/2018), the Judge accepted the expert evidence that the NPCSC’s decision has legal effect under the PRC law and is binding on governmental authorities in the Mainland as well as the HKSAR including Hong Kong courts, adding that Hong Kong courts have no power to determine the validity of the NPCSC’s decision under Hong Kong laws.

The NPCSC’s Decision followed the constitutional order and is applicable to the HKSAR. It is in line with “one country” and respects “two systems”. The power to deal with this constitutional lacuna caused by the postponement of the election is never within the autonomy nor jurisdiction of the HKSAR, whether one is talking about the Government or courts. The common law preserved in the Basic Law is not in any way affected. The suggestion that the Decision means that Hong Kong no longer exercises the common law and the Basic Law is totally baseless. The fact that such fundamental issues are mistaken means that the constitutional structure, purpose and meaning of the Constitution and the Basic Law are not fully appreciated and more have to be done to ensure that such issues are properly understood.

Now that the postponement of the election and the constitutional lacuna are addressed, we must fight the COVID-19 pandemic in solidarity and focus on our economic development and improving people’s livelihoods so as to keep our society moving forward.

August 16, 2020