The legal community is closely watching developments in Hong Kong, where Deputy High Court Judge Frankie Yiu recently refused to grant leave for a constitutional challenge against a provision that criminalizes the incitement of casting invalid votes. This ruling came in a judgment issued on Tuesday, which affirmed the necessity of the provision to improve the electoral framework.
The contentious provision, section 27A of the Elections (Corrupt and Illegal Conduct) Ordinance, prohibits actions intended to incite others not to vote or to submit invalid ballots during election periods. The legal challenge brought forward by the appellant contended that this provision infringes on the right to free expression as enshrined in the Basic Law and the Hong Kong Bill of Rights.
Citing a case from the European Court of Human Rights, Teslenko and Others v. Russia, the appellant argued for the legitimacy of advocating abstention from voting as a form of political expression. However, Judge Yiu sided with the government’s position, emphasizing that the prohibition is proportional to the need given past disturbances and is confined to election periods.
The appellant further alleged that the provision discriminates based on political opinion, likening it to advocating a form of political expression. Yet, Judge Yiu dismissed the argument, labeling the advocacy of invalid ballots as manipulative and detrimental to the election process. Thus, it was not deemed comparable to other forms of political viewpoints that engage constructively with electoral processes.
This case’s implications are significant following events that began in 2019, which saw major movements against a proposed extradition bill. In response, China’s National People’s Congress revamped Hong Kong’s electoral system, leading to the passage of the Improving Electoral System Bill 2021, which introduced the contested provision.
For more details on this case and its impact, the full article can be viewed on JURIST – News.