Press Releases

Government's response to HK Bar Association's submission: The Government keeps an open mind on the final option to be proposed

     In response to media enquiries concerning the submission made by the Hong Kong Bar Association, a Government spokesman today (August 31) gave the following response:

     "The Government is now consulting the public on arrangements for filling vacancies in the Legislative Council (LegCo). We welcome views from the public and different organisations and the detailed response from the Bar Association (the Bar). We will consider carefully the views received.

     As some of the points in the Bar's response touch on certain important points of principle and of law, we have decided to give a more detailed response at this juncture.

     The Administration cannot agree to the Bar's assertion that we have 'cherry-picked' Option 2 as the preferred option. The Administration has not yet determined the final option for legislation. The public consultation is underway. We shall ensure that the final option adopted is consistent with the Basic Law.

     The Consultation Paper has set out some pros and cons of each of the options in the hope of facilitating public discussion on the proposals. As regards options other than Option 2, we should emphasise that they are either based on the proposals made by members of the Bills Committee, academics and the public (some of whom have a legal background), or with reference to overseas practices.

     As regards Option 2, the Administration considers it to be legal and reasonable. The detailed paper from the Department of Justice submitted to the Bills Committee before the consultation exercise has been included as Annex V of the Consultation Paper because it is relevant and predates the consultation exercise. However, the Consultation Paper also sets out the criticisms against and possible drawbacks of this option for the public to consider. In fact, the criticisms made by the Bar with reference to single-candidate lists have been specifically referred to (see paragraph 4.13 of the Consultation Paper).

     All relevant views (including views on legal issues) can be taken by the public as relevant considerations in deciding which option to support. Furthermore, there is room for refinement of the details of different options, which can help remove or reduce any concern over legal uncertainties.

     The Administration will continue to keep an open mind on the final option to be proposed.

     The Bar has criticised the following statement in paragraph 1(a) of Annex V of the Consultation Paper as an assertion without explanation: 'A replacement mechanism would not amount to an unconstitutional deprivation of the right to vote or the right to stand for election merely because no by-election would be held to fill a casual vacancy.'

     In fact, paragraph 1(a) starts off by stating, 'By-election is not the only lawful means to fill a casual vacancy'. This is in fact borne out by the practices in other jurisdictions as mentioned in paragraph 1.15(a) of the Consultation Paper as well as the discussion on principles in paragraph 1.10 of the Consultation Paper.

     Paragraph 1(a) continues, 'The Basic Law and the Hong Kong Bill of Rights do not require that any casual vacancy of the Legislature must be filled by means of a by-election'.

     The Bar says the current system of filling casual vacancies by by-election cannot be changed unless there are strong, convincing and compelling reasons. However, it is trite law that electoral rights in Article 26 of the Basic Law are not absolute and may be restricted if the restriction is prescribed by law and proportionate. The current consultation is precisely for the purpose of eliciting views of the public and examining whether sufficient justification exists for any change in the law. The Legislature is given a broad margin of discretion to determine what is proportionate, reasonable and justifiable.

     We note that the Bar reiterated its earlier concern as to whether or not the phenomenon in 2010 is a mischief or a sufficient justification for legislative changes.

     The Administration emphasises that the Government and the Legislature are entitled to regard it as an abuse of process for a LegCo Member to resign in order to instigate a by-election in which the Member intends to stand and seek re-election.

     As mentioned in paragraph 1.01-1.02 of the Consultation Paper, the 2010 resignations led to considerable concerns in the community. There have been calls for the current arrangement for filling a casual vacancy in LegCo to be reviewed to address the mischief. Opinion polls point to considerable public support for the loophole to be plugged.

     We have emphasised that the Administration's concern is not with the political subject on which the so-called referendum in 2010 was supposed to focus. Instead, our concern relates to the adverse impact such resignations and seeking to be re-elected through by-elections (for whatever cause) will have on the electoral system and on the public (as set out in Chapter 1 of the Consultation Paper).

     In any event, the public can express their views as to whether or not this is a loophole to be plugged (see paragraph 5.06 of the Consultation Paper – this is the first question asked).

     It is true that by-elections have been used to fill casual vacancies for a number of years. However, it is noteworthy that the list proportional representation system has been generally applied in Hong Kong only since 1998. Further, before 2010, the casual vacancies arising mid-term are all confined to single-seat vacancy and were far apart. What happened in 2010 was most unusual and controversial. This naturally necessitates the re-examination of the relevant electoral law principles, including the wider issue of whether or not the current by-election arrangement is the most appropriate way to fill a casual vacancy in a list proportional representation system.

     The Consultation Paper has referred to the practices and rationale of overseas jurisdictions which use candidate lists to fill vacancies arising under a proportional representation system. Many of these jurisdictions are state parties to the International Covenant on Civil and Political Rights (ICCPR) and it would be wrong to presume that such practices are inconsistent with the ICCPR. It is, thus, open to Hong Kong to consider adopting a similar approach for filling vacancies.

     In paragraph 17 of the Bar's response, the Bar questions whether it is correct for the Administration to say the current system of by-election introduces a first-past-the-post element into what is otherwise a proportional representation system. The Bar cited a situation where two or more vacancies are to be filled in a by-election. In such a situation, a list proportional representation system would operate. However, such a hypothetical situation is extremely unusual and has never occurred in Hong Kong. The reality is that all by-elections held so far since 1998 have involved a single seat on each occasion.

     As regards the single candidate list, consideration should be given to the overall design of the electoral system and not forgetting the mischief which has to be addressed by the change in the law. Once the new system is in place, if persons choose to stand for election on a list of one candidate, and if electors choose to vote for them, they will know of the possible consequences in the event of the seat becoming vacant. We consider that, if such a singleton member vacates the seat, it is permissible to adopt a replacement system which best reflects the spirit of the list proportional representation system.

     The Administration is still in the process of receiving other views from the public. We shall consider all views collected in detail and study the issue carefully. Upon the completion of the consultation, the Administration will publish a report and we intend to resume and complete the legislative exercise in the 2011-2012 legislative session.

     The Administration will ensure that the final proposal put forward for consideration by LegCo will not just be constitutional and legal but also reasonable and rational."

Ends/Wednesday, August 31, 2011