Decision to delay poll explained

August 3, 2020

The Government today said its decision to postpone the 2020 Legislative Council General Election on public health grounds is reasonable, legal and in the public interest.


It made the statement in response to comments made by the Hong Kong Bar Association.


The Government said the health and well-being of all Hong Kong people is its overriding concern.


Since July 1, more than 2,300 confirmed COVID-19 cases have been recorded, compared to a cumulative caseload of about 1,200 over the preceding six months.


It emphasised the city is at a critical juncture in its battle against the virus and that if the situation is not handled resolutely, the current wave of infections could spiral out of control.


In fact, the Electoral Affairs Commission wrote to the Chief Executive on July 28 expressing concerns over the public health risks of conducting the LegCo election, it said.


To combat the virus’ spread, the Government has put in place the most stringent social distancing measures ever adopted since January. These measures have inevitably affected the normal operation of businesses and people’s daily activities.


The association’s doubts about the evidential basis of the Government’s decision have overlooked these facts and concerns.


The Government attaches importance to protecting the constitutional right of Hong Kong residents to participate in elections.


It stated that with stringent social distancing measures in place, no meaningful electioneering activities could be conducted.


These measures would also prevent candidates from putting across their manifesto to voters.


Moreover, the strict boundary control measures make it virtually impossible for voters in the Mainland and overseas to return to cast their votes.


The decision to postpone the election is, therefore, to protect public health and protect the voting rights of all registered voters.


Regarding the duration of the postponement, the Government stated that the current wave of infections would likely last for at least several weeks or longer, adding that there may also be a winter surge later in the year.


Postponing the election for 14 days under section 44 of the Legislative Council Ordinance (Cap 542), as suggested by the association, is not a practical solution to this unprecedented problem, it added.


On invoking the Emergency Regulations Ordinance (Cap 241) to postpone the election, the Government stressed that it was the only viable option.


It said the legal basis is sound, as the epidemic situation can be regarded as an occasion of public danger and emergency.


In a free society like Hong Kong, citizens are free to raise legal challenges against policy decisions or existing legislation at any time.


It will not be in the public interest if the Government refrains from making decisions or invoking legal powers under existing legislation due to the possible outcome of legal challenges.


In the present case, it is key to note that the Court of Appeal upheld the constitutionality of the Emergency Regulations Ordinance in a judgment in April.


The Government added that a pressing task following the postponement is to address the legislative vacuum that will emerge when the current LegCo term ends on September 30.


The Chief Executive has sought the support and guidance of the Central People’s Government and the State Council has already replied.


The State Council expressed support for the decision to postpone the election and said it would make a submission to the National People’s Congress Standing Committee (NPCSC), the highest organ of state power, for its decision.


The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China. Under the Constitution of the People’s Republic of China, the NPCSC has the authority to tackle this constitutional issue encountered by the Hong Kong SAR.


The Government said it does not see how this is contrary to the principles of legality and legal certainty and degrades the rule of law in Hong Kong as alleged by the association.

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