I do not agree with the statement of the Hong Kong Bar Association on the special administrative region government’s decision to postpone the Legislative Council election originally fixed for Sept 6.  The statement is made on political rather than legal grounds.

It is accepted that to vote and to stand for election are guaranteed by Article 26 of the Basic Law and Article 21(b) of the Hong Kong Bill of Rights Ordinance. So is the right to life protected by Article 2 of the Hong Kong Bill of Rights Ordinance. 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 Hong Kong 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 pandemic first appeared and has reached a decision on the appropriate balance struck between protecting public health and the constitutional right of Hong Kong residents to participate in the forthcoming election.

The Bar Association cited remarks of the UN High Commissioner for Human Rights and the UN Special Rapporteur on March 6, March 16, and April 14, respectively. The global number of COVID-19 cases on the said three dates were 98,192; 167,515; and 1,844,863, respectively, while on Aug 3 the number was 18,056,310. The number of deaths on those dates were 335; 6,606 and 117,021, respectively, and as of Monday the total was 689,219. In Hong Kong, the number of cases on those dates were 107; 157; and 1,012, and the number of deaths were 2; 4; and 4, respectively. As of Aug 3, the number of cases was 3,592 and the number of deaths had risen to 38.

The epidemic situation has been extremely severe since the outbreak in early July. There is an increasing risk of a major community outbreak. ... There are voters outside Hong Kong who are unable to return to Hong Kong to vote and elderly voters may refrain from voting due to their higher infection risk

Experts’ advice in March and April was given in very different situations.  

In the meantime, the International Foundation for Electoral Systems reported that up to July 15, 62 countries and territories had postponed elections. International Democracy and Electoral Assistance reported that between Feb 21 and July 26, at least 68 countries and territories had postponed elections, while 49 countries and territories proceeded with elections notwithstanding the COVID-19 pandemic. The United Kingdom postponed the local council elections and the metro-mayoral elections for a year to May 6, 2021. This must have taken into account 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, as was the Prevention and Control of Disease Ordinance (Cap 599), but the ERO was chosen because experience shows that the legislative process is subject to obstruction, for example by filibustering, of some opposition members of the Legislative Council, while here we are dealing with an emergency.

It is true that the constitutionality of the ERO is being challenged pending appeal to the Court of Final Appeal. However, we are dealing with an emergency, and the risk of the ERO being held unconstitutional is a calculated risk with a good chance its constitutionality will be affirmed.

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

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 for assistance. The report was met with a proactive response and we await the decision that the NPCSC will make so that there will be no lacuna between the expiry of the term of the Sixth Legislative Council and the beginning of the term of the Seventh 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 NPCSC 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.

The author is a solicitor and former secretary for justice.

The views do not necessarily reflect those of China Daily.