Response to HKBA statement on HKSAR's LegCo election delay decision
Elsie Leung Oi-sie
The Victoria Harbor in Hong Kong, south China, July 29, 2020. /Xinhua

The Victoria Harbor in Hong Kong, south China, July 29, 2020. /Xinhua

Editor's note: Elsie Leung Oi-sie is the former Secretary for Justice of the Hong Kong Special Administrative Region (HKSAR) government. The article reflects the author's opinions, not necessarily the views of CGTN.

On August 2, the Hong Kong Bar Association (HKBA) released a statement to "express concerns over the Government's decision to postpone the Legislative Council Election originally fixed for the September 6, 2020." They say "there are serious doubts about the legal and evidential basis of the Government's decision."

I do not agree with the statement as it is made on political rather than legal grounds.

It is accepted that to vote and stand for election is guaranteed by Article 26 of the Basic Law and Article 21(b) of the Hong Kong Bill of Rights, so is the right to life protected by Article 2 of the Bill. People's lives are threatened by COVID-19 and we have been advised that a situation with millions of voters casting their votes on the same day will create a very high infection risk.

The epidemic situation has been extremely severe since the outbreak in early July. There is an increasing risk of a major community outbreak that may lead to a collapse of the local public hospital system, which would be a significant public crisis. There are voters outside Hong Kong who are unable to return to the city to vote and elderly voters may refrain from voting due to their higher infection risk.

The HKSAR government has been advised by a group of experts since the epidemic first appeared and has reached a decision on appropriate balance struck between protecting public health and the constitutional right of Hong Kong citizens to participate in the forthcoming election

The HKBA cited remarks of the UN Special Rapporteurs and the UN High Commissioner for Human Rights on the March 6 and 16, 2020 and April 14, 2020, respectively.  The global numbers of COVID-19 cases on the mentioned three dates were 98,192, 167,515 and 1,844,863 respectively, whilst on August 3, it was 18,056,310. The numbers of deaths on those dates were 335, 6606 and 117,021 respectively and as of yesterday was 689,219.  In Hong Kong, the numbers of cases on those dates were 107, 157 and 1,012, and the numbers of deaths were two, four and four, respectively. As at the August 3, the number of cases was 3,592 and the number of death has risen to 38.

Experts' advice in March and April, 2020 was made in very different situation. 

In the meantime, International Foundation for Electoral Systems reported that up to July 15, 62 countries and eight territories have postponed their election, according to International Democracy and Electoral Assistance reported that between February 21 and July 26, 2020, at least 68 countries and territories have postponed their election, whilst 49 countries and territories proceeded with election notwithstanding the COVID-19 pandemic. 

A banner with slogans on fighting COVID-19 in Tsim Sha Tsui, Hong Kong, south China, July 20, 2020. /Xinhua

A banner with slogans on fighting COVID-19 in Tsim Sha Tsui, Hong Kong, south China, July 20, 2020. /Xinhua

The United Kingdom postponed local council elections and the metro-mayoral elections for a year to May 6, 2021. This must have taken into the number of voters and the environment of the voting stations of each count.

The Government's decision is made by invoking the Emergency Regulations Ordinance (Cap.241) (ERO), which enables the Chief Executive in Council to legislate speedily and effectively to meet all and every kind of emergency and public danger. Various clauses of the Legislative Council Ordinance (Cap. 542) were considered, so was the Prevention and Control of Disease Ordinance (Cap. 599) were considered but has decided on the ERO because experience shows that legislative process is subject to obstruction, for example by filibustering technique, of some opposition members of the Legislative Council, whilst here we are dealing with an emergency.

Although it is true that the constitutionality of the ERO is being challenged pending appeal to the Court of Final Appeal, we are dealing with an emergency, and the risk of the ERO being held unconstitutional is a calculated risk with good chances of success.

The HKSAR government is criticized for not explaining to the people satisfactorily the reason for postponement of the election. The truth is the government gave a press conference, widely televised, for nearly two hours and published a lengthy statement in both languages immediately afterwards. The Emergency (Date of General Election) (Seventh Term of  the Legislative Council) Regulation was published on the July 31, 2020 and came into effect on the August 1, 2020.

It is true that the HKSAR government cannot amend the term of the Legislative Council as provided for in Article 69 of the Basic Law. That is exactly why it is the Chief Executive's duty to make a report to the State Council which will submit the matter to the Standing Committee of the National People's Congress (NPC) for assistance. The report was met with proactive response and we await the decision which the NPC will make so that there will be no lacuna between the expiry of the term of the 6th Legislative Council and the beginning of the term of the 7th Legislative Council. 

This will resolve a matter which the HKSAR itself cannot resolve as it is an emergency nobody expected. I have no doubt that the NPC will make a decision that is constitutional and is consistent with the concept of "One country, two systems" and in compliance with the Basic Law.

(If you want to contribute and have specific expertise, please contact us at