The Hong Kong Court of Appeal unanimously confirmed a law that prohibits public advocacy of boycotting elections on Wednesday.
The court ruled that the law constituted a legitimate violation of the right to freedom of expression. Chief Justice Andrew Cheung noted that the law serves a legitimate goal of protecting the legitimacy of an election by ensuring broad participation and protecting election integrity from misleading or demagogic campaigns. The court also noted that the interference with freedom of expression is limited to the election period and that sentencing judges have the discretion to impose penalties commensurate with the seriousness of the alleged conduct.
The court also found that the law complied with international human rights standards. Cheung found common messages between the United Nations’ general comments on the Right to vote And Freedom of expression and the Strasbourg jurisprudence Teslenko and others against Russianamely, that freedom of expression is a restricted right and that any legislation restricting this right is subject to strict scrutiny. Accordingly, the court ruled that restrictions on election boycott campaigns can serve a legitimate goal and are constitutionally permissible if they are proportionate.
In its General Comment No. 34 on freedom of opinion and expression, the UN Human Rights Committee said:
It may be legitimate to restrict freedom of expression in order to protect the right to vote under Article 25… Such restrictions must be interpreted with caution: while it may be permissible to protect voters from forms of expression that constitute intimidation or coercion, such restrictions must not impede political debate, including, for example, calls for a boycott of a non-compulsory election.
It is about Section 27A of the Electoral Ordinance (Corrupt and Illegal Conduct).. It criminalizes any public activity that induces another person not to vote or to cast an invalid vote during election periods. The provision is part of the city Reform of the electoral system In 2021, the aim is to ensure that “patriots govern Hong Kong” and guarantee residents the right to vote and stand for election. The reform came after China’s National People’s Congress decided that a new democratic system was necessary to uphold the “one country, two systems” principle, which allows the city within China’s sovereignty to have economic and legal systems different from mainland China.
The case, HKSAR vs So Tsun Funginvolves a defendant who reposted a post on his social media urging the public to cast blank ballots in the election to signal their dissatisfaction with the government. All lower courts found him guilty and rejected his constitutional challenge to the law.
