'Election ban after jail terms is disproportionate'

Activist Raphael Wong wants the High Court to find that a five-year ban on elections for those given three months or more in prison violates Hong Kong's Bill of Rights. Photo: RTHK

A lawyer for pro-democracy activist Raphael Wong told the High Court on Tuesday that a five-year ban on running for office for those given jail terms of three months or more is both disproportionate and unconstitutional.



Hectar Pun said the "blanket and automatic disqualification" of five years is too long.



He said it can also be arbitrary, being as depending on when in the election cycle a person is convicted, they could be stripped of the right to stand in one election or sometimes two.



Pun noted that the ban is not affected by any ongoing appeal process, which means it could unfairly deprive people of the right to stand in an election even though their conviction or punishment could later be quashed.



He went on to argue that the ban deprives voters of the chance to make their own assessments of an election candidate and unduly restricts their range of choices.



"This inhibits the free expression of the will of the voters," he said, as he sought to convince the court that the ban violates the Bill of Rights, which says permanent residents are allowed to vote and take part in public affairs.



However, the government's lawyer, Benjamin Yu, asked the court to note that there is a difference between disqualification and disenfranchisement - the former removing people's right to stand in an election, and the latter depriving people of the right to vote.



Yu said whether the ban should be five years or three years, and how many months of imprisonment should trigger a ban, is not a legal question but a political one.



“It should be left to the legislature and the government to consider a matter involving political and policy considerations,” Yu said.



The senior counsel added that the right to stand in elections and the right to vote are not absolute, and there can be lawful restrictions on these rights.



Wong, who is the chairman of the League of Social Democrats, is himself banned from standing in September's Legco polls and the 2023 district council elections after being jailed for eight months last year over the 2014 Occupy protests.



He was one of nine prominent pro-democracy figures convicted of public nuisance charges.



Tuesday's judicial review hearing was only to last one day and was held by way of video conferencing.