The Hong Kong government has found an interesting solution to the two vacancies in the Legislative Council (LegCo) created by the disqualification of two members by the High Court on January 3.
There is a nice ironic twist to this: the two members were disqualified because the Returning Officers (the District Officer wearing another hat) had refused to allow another candidate to run in each of the constituencies concerned, because of the government’s wish to weed undesirable candidates out of the election running.
This weeding out is, surprisingly, legal, but there is a condition: the candidate to be ruled out must be given an opportunity to defend himself in writing before the Returning Officer ditches him or her. This condition was set down by a High Court judge but a surprising number of legal luminaries, including Grovel Crossly, thought it was a mere recommendation.
It wasn’t. The two candidates were unlawfully excluded so the result of the election is void. Hence the two vacancies. In other words, this is entirely the government’s fault, and in particular the fault of the Electoral Affairs Commission (EAC), whose sole job is to see that elections are run according to the rules.
Well, the interesting solution to the two vacancies is that they will be left vacant. There will be no by-election to fill them. This decision is unlawful, disreputable, and dishonest.
Let us start with the law. The Basic Law says that upon a vacancy occurring a by-election must be held. The only restriction is that no by-election should be held in the last four months of the Council’s term of office.
No exception is made for administrative convenience, the possibility that the EAC has other things on its mind, or indeed that the term of office of the member elected in the by-election may be rather short.
The current LegCo expires next September, which means no by-election can be held in June or later.
The EAC’s excuse (it would be too flattering to call it a reason) for ducking its legal obligation to hold the two by-elections is, according to its formal statement, that “it is not possible to hold the two by-elections… before the statutory deadline.”
The statement cites the need for “an enormous amount of manpower and resources,” and of course “the current social situation,” though that situation did not prevent the holding of territory-wide district council elections.
Now let us look at the practicalities. Holding by-elections is like dealing with typhoons or visits from Pooh. It is an unusual event which demands some repurposing of resources usually used elsewhere, to deal with the temporary demand. This should not be beyond the capacity of a competent administration and it didn’t use to be.
Between 1991 – the first-ever LegCo by-election – and 2010, there were seven by-elections. Five of them were held between two and three months after the vacancy occurred. In the two exceptions, the gap appeared unexpectedly in August and was not filled until December, four months later.
So it is clearly possible for an administration with its eye on the ball to hold a by-election in three months if it really wishes to do so.
It is interesting to compare the situation in 2010 when five councillors resigned simultaneously to provoke a “referendum.” The government was no doubt in no hurry to grant their wish and had a good excuse because it had to organise five simultaneous by-elections territory-wide. Still, the vacancies appeared in January and the by-elections were held in May.
We may wonder if the officials concerned are setting new records for idleness, or for incompetence. We may also wonder if the government has been influenced by the knowledge that the by-elections, if held, are unlikely to produce a result which it will welcome.
The fact is that there has been too much fiddling with elections already. My constituency has been one councillor short for all of the current session of LegCo and was two short for most of it.
The Electoral Affairs Commission has just one job, and it has lamentably and totally failed in it. It is the Commission’s job to ensure that elections are held expeditiously under known and legal conditions. Yet we have had councillors in an out of the office, and in and out of court for years. The Commission is a shambles.
When the need for a by-election does come up you get the sort of response you would expect if you had asked the government to run a monorail through Central: Oh dear! The resources! The manpower! The premises! So difficult! The horror!
The situation also shines an unflattering light on those judges for whom we are annually exhorted to admire. Some cases are urgent, some are not, and some are so urgent that if the law operates at its usual speed the result will be meaningless.
Disputes concerning elections are in the latter category. The elected person quits his job, hires assistants, buys office equipment, rents surgeries, and then discovers that he or she may or may not actually be a councillor. The seat is vacant, the assistants are fired, the “councillor” is unemployed. The constituents who voted for this person are now represented by an empty seat.
Years go by, teams of lawyers do battle, and the elected person discovers that he was not, as it happens, elected. This is disturbing. The Electoral Affairs Commission at this point is stunned by the discovery that its services may be needed and takes six months to decide not to hold a by-election.
Hong Kong officials complained the other day about an international body which had categorised us as a “flawed democracy.” They should think themselves lucky. The category “joke democracy” was not available.