Posts Tagged ‘Electoral Affairs Commission’

Hong Kong: Government’s decision to disqualify candidates sparks more discussion on Hong Kong’s future course — Hong Kong independence rally begins

August 6, 2016

Edward Chan King-sang says courts, not electoral officials, should make calls on whether candidates faked pledges

By Shirley Zhao
South China Morning Post

Friday, August 5, 2016, 11:24pm

The government’s decision to disqualify localist candidates from running in next month’s ­Legislative Council elections will have a “long and deep” negative impact on Hong Kong’s legal system, former Bar Association chairman Edward Chan ­King-sang said yesterday.

Chan’s comments came as outgoing lawmaker Emily Lau Wai-hing of the Democratic Party, wrote a letter yesterday to the Human Rights Committee under the United Nations about the “disturbing development”, ­condemning the rejections and calling on the committee to “take urgent action”.

Electoral officials had cited the candidates’ pro-independence stance as against the Basic Law, and that they did not “genuinely” respect and uphold the mini-constitution even after some had signed a declaration stating so.

Chan said if supporting Hong Kong independence was a crime and candidates were found guilty by the court, they could be disqualified even after they were elected.

Therefore it should also be up to the court, not electoral officers, to decide whether candidates had faked their pledges.

“[Faking pledges] is a very ­serious accusation,” said Chan in a Commercial Radio programme. “The legal system should be the one to decide whether candidates are guilty of this.”

Chan claimed officials and civil servants, who did not have legal power and should be objective, were letting politics “eat into” the legal system by bypassing it and passing judgment ­themselves.

 Edward Leung (centre) was one of several localist candidates disqualified from the coming polls by the Electoral Affairs Commission. Photo: AFP

Six pro-independence candidates, including Edward Leung Tin-kei of Hong Kong Indigenous, were disqualified from the September 4 elections by the Electoral Affairs Commission. A recent survey showed Leung could have won a seat if he had been allowed to run.

The city’s justice chief Rimsky Yuen Kwok-keung on Wednesday defended the commission’s ­decisions, saying the returning ­officer’s call to invalidate Leung because she felt he had no intention of upholding the Basic Law, “had a legal basis”.

But Chan said the law is ­allowed to be amended and a person could uphold the law while wanting to change it. He added it could be argued that a lawmaker could pursue independence via discussions with the government and Beijing on law amendment.

A government spokesman countered that the Basic Law ­stipulates any amendment should not be against the central government’s principle policies on Hong Kong, which included that the city is an inalienable part of China. He said law amendment should not be allowed to become a means for reaching the goal of independence.

Meanwhile, Professor Lau ­Siu-kai, vice-chairman of the Chinese Association of Hong Kong and Macau Studies, warned Beijing might use more tactics to control pro-independence people.

He said the central government, facing increasing tension in international affairs and internal conflicts such as in Tibet and Xinjiang, could feel it ­needed to be more ­strong-handed on Hong Kong ­affairs and block localists’ path into Legco.


Hong Kong: Row over election ban on localist escalates as Hong Kong justice minister’s unconvincing explanation backfires

August 3, 2016

Rimsky Yuen Kwok-keung argues Edward Leung Tin-kei did not touch on independence when he ran in February by-election

By Jeffie Lam
South China Morning Post

Thursday, August 4, 2016, 12:19am

The row over the barring of a localist leader from next month’s Legislative Council elections intensified yesterday as the Hong Kong justice minister’s explanation backfired and 30 members of the committee that picks the city’s leader jointly questioned the power of electoral officials to make such decisions.

Justice minister Rimsky Yuen Kwok-keung waded in to explain that Edward Leung Tin-kei was disqualified from the September 4 elections over his pro-independence views but not last February’s by-election because he did not make “an explicit independence claim” back then.

He was promptly accused of double standards and not doing his homework as Leung countered that he had openly advocated Hong Kong’s independence from China, a fact confirmed by the Post and other media outlets.

The justice chief tried to defend the Electoral Affairs Commission’s decision to disqualify Leung a day after returning officer Cora Ho Lai-sheung invalidated the Hong Kong Indigenous member’s candidacy on the grounds that he had no intention of upholding the Basic Law.

“The returning officer has already explained the argument clearly in her reply, which I think has a legal basis,” Yuen said.

But all 30 members of the legal sub-sector in the 1,200-strong Election Committee that picked Hong Kong’s leader in 2012 hit out in a joint statement yesterday.

They countered that returning officers were not empowered to investigate the “genuineness” of candidates’ declarations to respect the city’s mini-constitution, let alone make “a subjective and political decision to disqualify a candidate without following any due process on the purported ground that the candidate will not genuinely uphold the Basic Law”.

“Such an inquiry and decision are not only unlawful but amount to political censorship and screening by the returning officer without any legal basis,” they said.

The 30 committee members are all either from the pan-democratic camp or linked to it.

The election watchdog sparked uproar last month by imposing a new requirement on Legco candidates to sign an extra form reinforcing acceptance of the city’s status as an inalienable part of China, on top of the standard declaration to uphold the Basic Law.

In a complete U-turn to head off disqualification last week, Leung gave up his campaigning for independence and signed the additional form.

He still ended up being rejected, as the returning officer decided he had not “genuinely changed” his pro-independence stance. At the same time, the watchdog gave 42 lists of candidates from the pan-democratic and localist camps the green light to run even though they refused to sign the new form.

A check by the Post found Leung had promoted independence as early as last December – well before his candidacy for the by-election was validated and gazetted on January 29.

Leung vowed to challenge the ban in court, recalling that he had advocated independence “as a way out” for Hong Kong in a by-election forum before the February poll. “Why didn’t the returning officers immediately disqualify me back then?” he said.

He complained that the ban was tantamount to depriving him of his political rights for life.

“When will they eventually believe I will uphold the Basic Law? In four years or eight years?

Do I have to sign a ‘letter of repentance’ and pledge I won’t call for independence in front of six cameras?”

Chinese University political scientist Dr Ma Ngok said the justice minister’s explanation was “subjective, selective and unconvincing”.

“Many people have touched on independence one way or another but why some of them were qualified but others were not?”

Hong Kong: Declaration document saying Hong Kong is an “inalienable” part of China is unnecessary, illegal and wrong

August 2, 2016

Sherif Elgebeily says the Electoral Affairs Commission runs the risk of being seen as suppressing dissent with its decision to bar a localist candidate from running


By Sherif Elgebeily
South China Morning Post

Last weekend, the Electoral Affairs Commission decided to invalidate the candidacy of Hong Kong National Party member Chan Ho-tin for the upcoming Legislative Council election. The exact reasons behind this are unclear, but other candidates who also refused to sign a newly imposed declaration form have yet to receive notice on the validity of their candidacies, fuelling concern.

The pledge to uphold the Basic Law is a fundamental part of the eligibility for candidacy, as outlined on the nomination form; it is for this reason that the ineligibility of Democratic Progressive Party of Hong Kong’s Yeung Ke-cheong – who refused to sign the nomination form itself – is legally valid.

Should Chan have been disqualified?

On one level, the additional declaration form is obsolete, as it simply duplicates existing obligations. Worse, it also appears to contravene both the rule of law in Hong Kong and the Basic Law in its effect.

First, there is no legal basis for the demand of an additional form, and the invalidation of candidacy on these grounds is beyond the powers of the commission. Any reference to such a form is absent in the law governing the election procedure; moreover, an exhaustive list of requirements for nomination is provided for under Section 40 of the Legislative Council Ordinance. Any legally enforceable declaration or criteria for the nomination of individuals would require amendments of the existing law, a path which has not been followed.

The commission has no absolute power to create new law

The commission has no absolute power to create new law. The form is also undermined by the commission’s own guidelines, which make mention of five explicit criteria for eligibility of nomination. They do not include the submission of a declaration form. These paradoxes raise alarm over the rule of law in Hong Kong, notably the separation of powers between government bodies and the supremacy of the law in an administrative context.

Second, in disqualifying candidates who are seen to advocate independence, on the grounds of failure to complete the declaration form, the commission has barred popularly supported candidates from representing their supporters. This infringes not only the rights of Hong Kong citizens to be elected, but also that of all citizens to elect their own representatives, and amounts to a violation of Article 26 of the Basic Law. To do so on the grounds of political belief also falls foul of articles 27 and 32 on free speech and the freedom of conscience. It is at best contradictory for the commission to disqualify candidates on the grounds of undermining the Basic Law while violating that document in doing so.

 Edward Leung speaks to the press last month. Leung received votes from some 66,000 Hong Kong people in the New Territories East by-election this year. Photo: AFP

Chan’s disqualification reflects a worrying trend of the regulation of Legco members. By eliminating voices of dissent at the ballot-paper stage, the authorities appear to be telling selected political groups that their opinions are either not welcome or not legitimate.

This rigid stance defies reality in today’s Hong Kong. Not all localist groups can be labelled anomalies. This year, for example, Hong Kong Indigenous’ Edward Leung Tin-kei won nearly 16 per cent of the vote in the New Territories East – over 66,000 voters in real terms. These citizens deserve to be heard.

Perhaps more importantly, voting patterns show that first-time and younger voters have been decidedly more involved in the election process, not only through casting ballots but also standing themselves. A new generation – those born after the handover – have reached voting age, and they care more about the status of Hong Kong and the full realisation of Basic Law freedoms than they do about the platforms that have traditionally formed political manifestos and campaigns. The government has a duty to engage with this demographic.

In essence, the decision to invalidate Legco candidacies over political stances is tantamount to the invalidation of the legitimacy of the voice of the youth today. From both a legal and political standpoint, the declaration form was unnecessary, illegal and threatens the future of the rule of law in Hong Kong.

Sherif Elgebeily (@selgebeily) is Bingham Centre International Rule of Law Visiting Fellow 2016, and a lecturer with the University of Hong Kong Faculty of Law

The Bingham Centre is a part of the British Institute of International and Comparative Law

Hong Kong: Pro-China Election Rules Changes Again Bring Out The Protesters

August 2, 2016
Anyone running for the legislature must sign a document pledging to support the notion that Hong Kong is an “inalienable” part of China — If you don’t sign, you cannot be part of the election….
By Reuters
Tuesday, 2 August 2016 14:53 GMT

* Candidates must sign form rejecting independence stance

* Opponents say that is assault on democracy

* Four candidates disqualified so far

By Tyrone Siu

HONG KONG, Aug 2 (Reuters) – Dozens of masked demonstrators tried to force their way into an electoral meeting in Hong Kong on Tuesday to protest against a new bar on anyone running for the legislature who refuses to declare the territory an “inalienable” part of China.

They were among hundreds of protesters gathered outside the meeting, a briefing for prospective parliamentarians, shouting for Hong Kong’s independence.

Inside the venue, some candidates who had been approved to run for election protested the decision to disqualify others.

Members of the League of Social Democrats and People Power tried several times to charge the stage and take the microphone before being pushed back by security, forcing the meeting to be suspended at least three times.

Politicians from other pro-democracy parties chanted: “No more political elimination!” and “Defend a fair election!”

The Electoral Affairs Commission (EAC) said last month that potential candidates for the September Legislative Council election must sign an additional “confirmation form” declaring Hong Kong an inalienable part of China and acknowledging that advocating independence could disqualify them from the election.

Hong Kong has greater freedoms than mainland China and separate laws that were guaranteed for 50 years as part of a “one country, two systems” framework negotiated with the British when they handed back their former colony.

But there has been political unrest in recent years centring on Beijing’s refusal to allow fully democratic elections and its perceived meddling in the special administrative region.

Beijing’s top official in Hong Kong came out in support of the EAC’s new form while three Hong Kong politicians filed a request for an urgent judicial review.

So far the EAC has rejected four candidates. Activists have posted personal attacks on some of the EAC officers responsible for the decision, actions that the Hong Kong government has condemned.

Edward Leung Tin-kei, who was rejected as a candidate by the EAC on Tuesday, responded by saying the city was ruled by a “dictatorship”, local broadcaster RTHK reported.

Leung, a leader of the group Hong Kong Indigenous was one of the first street activists to move into mainstream politics when he won an unexpected 15 percent of the vote in a February legislative by-election.

He had signed the EAC’s confirmation form, saying his top priority was to get elected. (Writing by Clare Baldwin; Editing by Robin Pomeroy)


Second Hong Kong Candidate Denied Ballot Position — Further undermining the legitimacy of the election

July 31, 2016

Yeung Ke-cheong did not pledge to uphold Basic Law

By Jeffie Lam
South China Morning Post

Monday, August 1, 2016, 2:02am

A second localist candidate was disqualified from running in the upcoming Legislative Council elections after he did not pledge to uphold the city’s mini-constitution.

The invalidation of Yeung Ke-cheong’s candidacy in Kowloon West came just one day after Chan Ho-tin, convenor of the Hong Kong National Party, was banned from the race by the Electoral Affairs Commission for “violating Basic Law”, the city’s mini-constitution since its handover in 1997.

Yeung, of the Democratic Progressive Party of Hong Kong, was positioned second on a candidate list with Jonathan Ho Chi-kwong in Kowloon West. Ho’s nomination was validated, but Yeung’s was not.

“I was disqualified as I deliberately stated that I would not uphold the Basic Law and thus did not sign the relevant statement,” Yeung wrote on his Facebook page on Sunday.

Both Ho and Yeung did not sign the additional declaration form introduced by Electoral Affairs Commission weeks ago which reinforces acknowledgement that Hong Kong is an inalienable part of China, while the latter even refused to sign the standard nomination form required by the Legislative Council Ordinance.

Section 40(1)(b) of the ordinance states that a person’s candidacy will not be validated unless his nomination form includes a declaration that he will uphold the Basic Law and pledges allegiance to the Hong Kong Special Administrative Region.

Instead, Yeung submitted to the watchdog a separate statement asserting that the city’s mini-constitution no longer applied to the situation in Hong Kong today and thus it would be difficult for him to sincerely uphold it.

“I fully understand such a move does not comply with the requirement …and could ban me from running,” Yeung wrote in the statement. “But I think the relevant legal clauses have violated basic human rights and freedom of speech …On this basis I will launch a judicial review.”

Meanwhile, Chan, who was disqualified on Saturday even he had signed the required form , vowed on Sunday to stage a series of actions to “subvert” the polls.

“I have already signed the form but [the returning officer] suggested my pledge is not sincere enough. Apparently the decision has nothing to do with law but political views,” Chan told RTHK’s City Forum on Sunday.

Chan said the precedent was dangerous as the ban could be extended in future to candidates who opposed the Communist Party or the chief executive.

“We will soon launch a series of actions to subvert the elections which will largely undermine the legitimacy of the polls,” Chan warned as he vowed to challenge the decision in court via a judicial review or election petition.

Crossing swords with Chan in the forum, Beijing loyalist Wong Kwan-yu, a member of the Basic Law Promotion Steering Committee, said the “reasonable” decision by the returning officer had sent a very strong message to the city: “Separatists would be banned from the political arena.”

Brave Chan Yung, a National People’s Congress delegate, went further by comparing Chan and his allies with terrorism, claiming countries including Britain and Canada would exhaust every means to combat terrorist activities and separatism.

I do not think the returning officer has any power to screen candidates on the basis of their political opinion

University of Hong Kong legal scholar Benny Tai Yiu-ting, who founded the Occupy movement in 2014, said there was no clause in the Basic Law that allowed the government to ban separatist hopefuls from elections – unless the mini-constitution was amended.

“I do not think the returning officer has any power to screen candidates on the basis of their political opinion,” he said. “There will be a very high chance the court may strike down the decision of the returning officer in the election petition [filed by Chan].”

Tai said the ban was a huge blow to the legitimacy of the elections.

“We can see from the recent survey that there might be 17 per cent of the population who support or show sympathy to independence. If you do not allow any candidate advocating that kind of view to participate in the election, [it] surely will not be able to fully reflect the different views of Hong Kong people.”