Declaration form for Legco election is both unnecessary and illegal

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.

‘I was disqualified’: second Hong Kong localist candidate barred from running in Legco elections

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On one level, the additional declaration form is obsolete, as it simply duplicates existing obligations.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 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.

The rise of the localists fighting for seats on Hong Kong’s Legislative Council

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 assistant research officer at the Centre for Comparative and Public Law, HKU Faculty of Law