The Court of Final Appeal upholds the law making it illegal to urge people to do something that is legal – namely boycott an election in Hong Kong. HKFP reports…
Although casting a blank ballot or not voting is legal, encouraging others to do either remains unlawful.
…[Chief Justice Andrew] Cheung said that calls to boycott an election by ways of casting a blank vote or not voting at all could undermine the “legitimacy, credibility, or representative mandate of the electoral process.”
The law does not bar individuals from casting a blank vote or choosing not to vote, he noted, as it only bans the act of publicly inciting others to do so: “It is one thing for individual voters to choose not to vote, or to cast an invalid vote. It is quite another for voters to be publicly incited to do so on a mass scale,” Cheung wrote.
“It can hardly be disputed that such incitement, if successfully carried out, is liable to undermine the effective conduct of elections,” he added.
Surely it can easily be disputed. Is calling for an election boycott a crime in any democratic society? Does it undermine elections in those places? And why do far fewer people vote these days: calls for a boycatt, or a tightly restricted range of permitted candidates?
He said the law has imposed a “modest” and “carefully circumscribed” restriction to freedom of expression, targeting public incitement rather than private discussion or individual decision-making.
Cheung also dismissed the argument that the law favours voting participation and discriminates against the advocacy of casting an invalid vote or not voting, which are lawful electoral choices. He said boycott calls could undermine the election and therefore a differential treatment is justified.
They’ve lost me. Surely, urging people to vote or not to vote both potentially affect or ‘undermine’ an election in equal measure. Just as both are urging or ‘inciting’ people in equal measure. (Note the key role played by the loaded term ‘incite’, which we never used to hear before 2020. It’s as if you are free to suggest, propose, urge, advise or bitch about; but if the authorities switch to the word ‘incite’, you’re suddenly committing a crime.)
Samuel Bickett adds…
The reasoning is, of course, thin. The court called the restriction “necessary” because calls to cast blank ballots risk “undermining the legitimacy” of Hong Kong’s elections, a legitimacy the government has done the most to erode by barring opposition candidates from running. It drew a line between abstaining and backing a candidate, holding that only abstention threatens the system, while declining to mention that openly supporting pro-democracy candidates can itself land you in prison.
That’s an interesting question. What if – in the run-up to a modern-day Hong Kong election – you call on people to vote for (say) Long Hair or other pan-dems who are now barred from the ballot? Does that count as urging/inciting people to boycott?