The Progressive Lawyers Group's FAQs in relation to the Electoral Affairs Commission’s recent actions on the issue of Hong Kong independence
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A. Introduction
M2 I! {( q. p0 L$ B( F+ d* uSince the nomination period opened in respect of the Legislative Council (“LegCo”) elections to be held on 4 September 2016 (“the Election”), there has been much public debate surrounding the Electoral Affairs Commission’s (“EAC”) actions in relation to Hong Kong independence. This debate has thrown up a myriad of legal issues. To provide greater clarity on the legal questions, the Progressive Lawyers Group have prepared the following FAQs, which set out our understanding of the background, as well as our position on the issues at hand公仔箱論壇* f5 I# v, C; U6 [7 T$ C0 A
In light of election guidelines regarding references to candidates, we have refrained from referring to names of specific candidates or constituencies. Our view is that this should not have any impact on the analysis set out in these FAQs. u) I0 U0 t1 l1 Y3 I+ ]/ {
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B. What happened?
) C# S3 x7 A* w: z; V |www2.tvboxnow.comQ1: What is this“confirmation form” that the EAC has asked Election candidates to sign?
# H8 b3 T& e& [; a7 h: ~# Pwww2.tvboxnow.comOn 14 July 2016, the EAC issued a press statement, saying that as part of the nomination process for candidates in the Election, it will ask all Election candidates to sign a confirmation form (“New Confirmation Form”). The New Confirmation Form contains confirmations that:
; y* \" a9 U$ b, X) p6 L9 r公仔箱論壇
* @) Q" q3 T* p4 V' A- the candidate upholds the Basic Law and pledges allegiance to the Hong Kong Special Administrative Region;
3 o; ~) D* s1 U' y; _公仔箱論壇-“upholding” the Basic Law includes upholding the following provisions of the Basic Law: (a) Article 1: The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China; (b) Article 12: The Hong Kong Special Administrative Region shall be a local administrative region of the People's Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People's Government; (c) Article 159(4): No amendment to this Law shall contravene the established basic policies of the People's Republic of China regarding Hong Kong; and
8 E6 `, R9 o/ H% a* o- it is a criminal offence if the candidate makes a false declaration.tvb now,tvbnow,bttvb$ Q& H3 p( @ ]
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Q2: Is the signing of the New Confirmation Form a legal requirement?www2.tvboxnow.com! {0 Z3 t& m& A" P
No.
7 s. U& R r0 C: J+ i% L8 q! Z公仔箱論壇The nomination form that all Election candidates are required to sign already contains a declaration that the candidate would uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region. The EAC itself had made clear that the New Confirmation Form is not a legal requirement, but is used instead for informational purposes by the returning officers in considering the nominations of Election candidates.
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Q3: Did all Election candidates sign the New Confirmation Form?8 p, z* m0 E. O
No.
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1 M4 Z1 }$ Q; L: |tvb now,tvbnow,bttvbQ4: Did all Election candidates who did not sign the New Confirmation Form end up having their candidacies disqualified?
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Four Election candidates who did not sign the New Confirmation Form did indeed get disqualified. One candidate signed neither the New Confirmation Form nor the legally mandated declaration (see Q2 above) in the nomination form. The other three, who signed the declaration but not the New Confirmation Form, were all disqualified on the ground that they had, in the past, publicly stated support for Hong Kong independence.TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。6 l4 _) w- i/ V* o3 q
Nonetheless, a large number of other Election candidates who signed the declaration but not the New Confirmation Form were confirmed as being eligible to run.( o% B' @6 Y( s( N* ]# X' T; H
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Q5: Did all Election candidates who signed the New Confirmation Form end up having their candidacies confirmed?
D. g+ [% ]% x% W* @ n6 O$ ywww2.tvboxnow.comNo.
! M% E; k( B0 q" ~: M: t公仔箱論壇Two Election candidates who signed the New Confirmation Form still ended up being disqualified as candidates. Both were disqualified because they had, in the past, expressed support for Hong Kong independence. Basically, their signatures on the New Confirmation Form were disbelieved by the returning officer. In one case, the candidate had (in response to a written question from the returning officer) even disavowed Hong Kong independence; however, this was also disbelieved by the returning officer., `- z1 c4 E: f& ?
3 z4 g7 Q1 A7 t; Lwww2.tvboxnow.comQ6: Did all Election candidates who had previously expressed support for Hong Kong independence end up having their candidacies disqualified?www2.tvboxnow.com" ~ T, ^- `4 b( G U
No.
0 m# y$ f$ _8 Rtvb now,tvbnow,bttvbA number of individuals who had expressly stated their support for Hong Kong independence, or at least advocated self-determination for Hong Kong with independence as an option, have been confirmed as Election candidates.
1 ^0 w7 l% U; \% ]. b4 U" T: {Q7(a): So, even leaving aside any legal analysis, the returning officers’ treatment of the New Confirmation Form and individual Election candidates’ views on Hong Kong independence has been riddled with confusion and inconsistencies?公仔箱論壇* f7 H9 ~9 u% w
Yes./ K/ h% z6 f' J# e4 ?/ C. v9 W
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Q7(b): Why?tvb now,tvbnow,bttvb' w* [$ N# v p3 D
Conspiracy theories abound. We need not indulge in such theories. We need only point out that the EAC and the returning officers are best placed to answer this question.
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' u4 T$ Y1 q$ J; v- q/ Ttvb now,tvbnow,bttvbC. Legal issues – constitutional framework and comparable international context: r0 d; [0 C$ E" G B6 Z
' Z3 z$ C1 ~& H1 g; XQ8: What are the fundamental rights at stake in the facts as outlined in Q1 to Q7 above?公仔箱論壇+ a7 G6 h' C W. B, r! Z$ z
Article 26 of the Basic Law states that “[p]ermanent residents of the Hong Kong Special Administrative Region shall have … the right to stand for election in accordance with law.”9 h7 U# ~4 @" P; [, p5 Y, d
Article 27 of the Basic Law states that “Hong Kong residents shall have freedom of speech”.
# V0 p6 t% X# \3 J+ L公仔箱論壇The right to stand for election and right to freedom of speech are further protected through Article 16 and 21 of the Hong Kong Bill of Rights (which correspond with Articles 19 and 25 of the International Covenant on Civil and Political Rights, which by virtue of Article 39 of the Basic Law is to be implemented through Hong Kong laws).& m2 A- e9 i, [$ T
- I s- j: v0 p% U' W$ SQ9: But surely rights are not absolute and can be subject to lawful limitations?TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。; j% S' t& ~" V
Yes. However, the Hong Kong Court of Final Appeal has repeatedly made it very clear that:公仔箱論壇% q/ @# w5 c- T# @/ N
- fundamental rights should be interpreted generously so that Hong Kong residents can enjoy them in full measure; and7 t0 H$ I. ]- u" K
- any restrictions on fundamental rights should be interpreted narrowly, and the burden is on the Government to justify such restrictions.
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% C4 H `; c' W1 @6 [, iwww2.tvboxnow.comQ10: But surely it is justifiable to restrict fundamental rights if a person is advocating Hong Kong independence, given that this is fundamentally inconsistent with the structure of the Basic Law (which is based on Hong Kong being an inalienable part of China)?7 k2 E( I j: b& D$ B, L0 i
We disagree, because:
( |* p# {2 u; [/ o$ ewww2.tvboxnow.comWhilst the text and structure of the Basic Law is based on Hong Kong being an inalienable part of China, this fact should not be read in isolation. It must be read together with the fundamental rights that have been guaranteed to Hong Kong residents. Indeed, if one looks at the Sino- British Joint Declaration, the resumption of China’s sovereignty over cannot be separated out and given higher status than the fundamental rights to which Hong Kong residents are entitled. They both form part of the “basic policies” of China regarding Hong Kong as set out in the Joint Declaration.TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。9 t0 B2 Y# r) N4 ?9 M9 k4 Q5 T% u
In other places (e.g. United States, United Kingdom, Canada), there have been numerous candidates or even members of legislatures who have to swear allegiance to their country and/or to upholding its constitution. However, in all of these places, candidates openly seeking independence for their regions have in the past or currently not been prevented from standing
3 j e/ ~* U6 T1 D& q公仔箱論壇for elections or even becoming members of legislatures, provided they make the necessary declarations and/or oaths of allegiance.
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& J/ f! P. H$ R1 P' W) \Q11: But the examples in Q10 above relate to national legislatures. Hong Kong is merely a region under the Chinese nation. Surely these examples are not relevant?公仔箱論壇8 R V% Z4 G+ A* Z% x0 U
Incorrect.* a6 w* u8 [ b6 a
In all three examples in Q10 above, independence advocates also sat or currently sit in regional legislatures (e.g. the Scottish Parliament or the National Assembly of Quebec). The United Kingdom in particular is not a federal state (unlike the United States or Canada) but instead has devolved legislatures (e.g. the Scottish Parliament). As such, we disagree with the argument that somehow Hong Kong's “regional” status would lessen the measure of rights being enjoyed by its residents.TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。: [& j$ K* W" U9 L& Y
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D. Legal issues – statutory framework
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; i6 k8 d4 B) r公仔箱論壇Q12: What provision sets out the eligibility criteria for Election candidates?3 L6 j9 ]2 n. {0 ^6 y2 }5 r
Section 37 of the Legislative Council Ordinance (“LCO”) sets out the criteria for being eligible to be nominated as a candidate. The criteria relate to matters such as age, residency, and (for functional constituencies) sector-related requirements.
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& R1 h5 I. O) @) H. D# F4 L6 e. ]Q13: When is a person disqualified from being nominated as an Election candidate?
$ L. B0 ~! z' Lwww2.tvboxnow.comSection 39 of the LCO sets out the circumstances where a person would be disqualified from being nominated as an Election candidate.. D& ?$ k. b* [0 j( o) S
They include being a judge; holding foreign government positions; being bankrupt; being declared mentally ill; etc.
! B9 } }7 K# x- fImportantly, they also include being convicted of treason at any time; or being convicted, within five years before the election, of an offence with an imprisonment sentence of more than three months, or of bribery, or of election-related offences.
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Section 40 of the LCO states that a person is not validly nominated unless he places a deposit with the EAC, as well as making several declarations and oaths.
8 n# s3 X9 n; R' {5 Y8 o7 `# C0 o5 xTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。For present purposes, the relevant declaration (contained in the nomination form provided by the EAC for Election candidates) is one “to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region” (see section 40(1)(b)(i) of the LCO).
8 R" L% O& ]: J. Y) ttvb now,tvbnow,bttvbIn addition, sections 10 and 11 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (“Regulation”) sets out various additional administrative requirements for potential candidates, such as declarations on eligibility to stand and subscribers in support of his nomination.tvb now,tvbnow,bttvb9 Y- [8 Q, z5 W: U# d* A3 h
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Q15: Who decides whether a person is validly nominated as an Election candidate?TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。- h V; O7 f6 k3 Y. g- c' w' G
According to section 42A of the LCO and section 16(1) of the Regulation, it is for a returning officer to decide. The returning officer must do so “as soon as practicable” after receiving a nomination form.7 v8 q6 o' [9 o6 ~% a+ q7 n
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Q16: If all requirements under Q12 to Q14 above are complied with, what are the circumstances where a returning officer can still decide that a person is not a valid Election candidate?公仔箱論壇$ t4 S' W- C- ^ O
The circumstances are as follows:1 c4 ^5 A/ `7 z2 w1 B; K
Section 16(2) of the Regulation allows a returning officer to invalidate a candidacy if the candidate withdraws, or if the returning officer decides that a nomination form is invalid. However, this relates only to defects on the nomination form itself, because section 18 of the Regulation refers to an opportunity being given to the candidate to rectify anything on the form which affects its validity. In any event, in the present case of the Election, the returning officers did not rely on section 16(2) of the Regulation in disqualifying various candidates. Instead, they relied upon their lack of belief in the candidates’ truthfulness, and this allegedly meant that section 40(1)(b)(i) under Q14 above was not satisfied.
7 E! |6 _; Q d$ q) w. bSection 16(3) states that a returning officer may decide a nomination is invalid “if and only if” a number of conditions are satisfied. They include failure to pay election deposit; lack of requisite signatures or subscribers on the nomination form; the candidate is dead; an individual nominating for more than one constituency; and where a person has not satisfied the LCO requirements (which would be the requirements under Q12 to Q14 above).
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Q17: Does a returning officer have the power to ask further questions to seek further information from an Election candidate for the purpose of determining the validity of his candidacy?) b7 S$ k5 E, l% w, p. x1 o8 s4 ?; p3 Q
Section 10(10) of the Regulation states that a returning officer “may require a candidate to furnish any other information that Officer considers appropriate to be satisfied (a) that he or she is eligible to be nominated as a candidate … ; or (b) as to the validity of the nomination.”tvb now,tvbnow,bttvb( o' u6 m* a2 d: I, J, |0 I9 C) A
At first glance, it may be argued that the returning officer have the power to ask anything or seek any information from candidates.
. H- P& k! Q% k) Otvb now,tvbnow,bttvbHowever, in our view, this argument is incorrect. It is implied within section 10(10) that the returning officer is only entitled to ask for information if that information is relevant to a specific ground upon which the returning officer may disqualify a candidate. For example, the returning officer is not entitled to ask for information about a candidate’s religious or political beliefs, because such beliefs are not a valid ground for the returning officer to disqualify a candidate.tvb now,tvbnow,bttvb" z v% t0 Q$ r7 w2 m7 }' t ?
In this regard, there is Hong Kong case law suggesting that even if someone appears to be generally empowered by legislation to ask for further information, such exercise of power must be reasonably connected to a particular ground upon which it has the power to make a particular decision. Thus, in view of matters referred to under Q12 to Q16 above, we consider that a returning officer does not have the power to ask questions about a candidate's past attitudes towards Hong Kong independence, because this does not go to any of the grounds on which a person can be held by the returning officer to be ineligible or invalid as an Election candidate.www2.tvboxnow.com7 d& W9 [8 G7 T% m! e: N* P. W
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Q18: Does a returning officer have the power to make judgments as to the truthfulness or otherwise of a declaration made in the nomination process?
T6 ?! @4 @+ F% @: A# OTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。No.
, \+ x3 p3 B1 K6 n7 H S f0 Btvb now,tvbnow,bttvbOverseas case law makes it clear that the role of a returning officer is an administrative one, being merely to ensure that any document presented to them is, on its face, in order. It is not open to the returning officer to conduct wide-ranging inquiries and make qualitative judgments. If a candidate is alleged to have made a false declaration, that is a criminal offence and should be ultimately be decided by the courts.公仔箱論壇3 O- |7 p# o/ Y2 `5 ~
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Q19: But what if you are wrong and a returning officer does have the power to make the judgments in Q18 above? Does that mean, in the present case, the returning officers did have the power to disbelieve the Election candidates’ declaration under section 40(1)(b)(i) of the LCO and hold that the candidates' nominations were invalid?TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。. n$ {4 Z" L" {
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Based on our answers to Q8 to Q11 above, and also Articles 26 and 27 of the Basic Law (as well as the corresponding sections in the Hong Kong Bill of Rights), we believe that a returning officer is not entitled to conclude that a person would necessarily fail to uphold the Basic Law or cannot pledge allegiance to Hong Kong merely because he had spoken and argued in favour of Hong Kong independence.
- |4 S/ z3 c) M0 hwww2.tvboxnow.comThis conclusion is further supported by the fact that, as noted under Q13 above, section 39 of the LCO sets out the specific circumstances where a person would be disqualified from being nominated as an Election candidate. For example, if a person is convicted of treason at any time or sentenced to more than three months’ imprisonment (which would likely be the sentence for someone convicted of sedition, riot, etc) within the last five years, he would be disqualified. Thus, there is already a specific prescribed mechanism (which requires criminal prosecution and conviction) for disqualifying candidates who have committed acts against the state. But merely because a candidate had spoken and argued in favour of Hong Kong independence does not fall under the circumstances described under Section 39.
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Q20: But what if you are wrong even on this and returning officers did have the power to act as described under Q4 to Q5 above?$ X: Z6 h1 r3 f P+ s& _" J) N
If that is the case, that would be most troubling for the future of fundamental rights and rule of law in Hong Kong. If those in power can today ban individuals from standing for election because they spoke or argued in favour of Hong Kong independence, in future all manner of speech which are alleged to be in breach of a fundamental premise of the Basic Law could be deemed as evidence of failure to uphold the Basic Law. For example:www2.tvboxnow.com' [6 I, w5 |- O; ~: {8 v
One country, two systems is "fundamental”, so those speaking in favour ‘one country, one system’ could be disqualified as candidates?TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。! D) I) W' G# M5 S9 i" B/ r
Judicial independence is “fundamental”, so those who make abusive verbal attacks on judges’ acts could be disqualified as candidates?) N a% R' W" y' B4 v6 ^& D* f6 T; t/ A
National security is “fundamental”, so those speaking against the introduction of legislation prescribed by Article 23 of the Basic Law could be disqualified as candidates?
3 w2 P0 W) j- }7 a1 y z1 L) }tvb now,tvbnow,bttvbWhat is even more troubling is that this could well extend beyond LegCo elections. For example, judges must also swear to uphold the Basic Law and pledge allegiance to Hong Kong (see Article 104 of the Basic Law). What if judges make rulings which are in accordance with the law, but which seek to protect the rights of Hong Kong independence activists? Can judges then also be said to have acted contrary to Articles 1 and 12 of the Basic Law (referred to under Q1 above)? Would this mean that judges have also failed to uphold the Basic Law and therefore render their oaths of office false? The possibilities for the arbitrary exercise of power, to the detriment of the rule of law and Hong Kong residents’ fundamental rights, are potentially unlimited once the floodgates are opened by the circumstances such as those under Q1 to Q7 above.
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7 A) j7 q3 u6 u/ T9 |$ `tvb now,tvbnow,bttvbE. What comes nextwww2.tvboxnow.com) S: e) E/ C% f# D, {9 L+ }8 z
7 r4 ~8 ^1 t" t# l9 d( o; M" }2 y% wQ21: What happens next for those candidates who have ultimately been barred from running in the Election in circumstances as set out under Q1 to Q7 above?- v5 [* z W- a7 E* h
Several judicial review proceedings are already in progress. Some of the barred Election candidates have also said that they will challenge their disqualifications by way of election petition. It would not be appropriate at this stage for us to comment on these court proceedings, except to say that they will be amongst the most important court proceedings in post-1997 Hong Kong history.
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; D/ ?% ^; z. `7 _7 d; u" I; q) CQ22: Might the Standing Committee of the National People's Congress (“SCNPC”) seek to intervene in the matters described under Q1 to Q7 above by way of an interpretation of the Basic Law (under Article 158 of the Basic Law)?TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。% i/ u$ J4 }4 H) d$ [3 p+ v. S
Given the nature of the matters at hand, and especially the fact that the disqualification powers exercised by the returning officers were under local legislation (i.e. the LCO and the Regulation), we do not see any legal basis for the SCNPC to intervene, because the SCNPC's power is to interpret the Basic Law itself and not to interpret local legislation.5 M: }, x: A- s Z
TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。( {4 H5 f: e, d/ j& j! D/ E3 z! W
But as we have seen in the past, the SCNPC has been willing to take dubious positions on the Basic Law (and related legal issues and processes) in order to achieve certain political ends. We can only hope that the SCNPC will in its wisdom decide not to intervene and let the matter be determined by the Hong Kong courts.
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% t) e! H- \2 M5 N1 `+ Mtvb now,tvbnow,bttvbProgressive Lawyers Group; c! w$ V: _1 M9 D
8 August 2016 |
發表於 2016-8-9 10:44 PM
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