Legislative Council elections 2016

Hong Kong electoral officials put independence seekers’ integrity to the test

John Chan says the primary aim in introducing the controversial form for Legislative Council candidates is probably not to screen out radicals, but to force them to conform to the norms – or suffer the legal consequences

PUBLISHED : Wednesday, 03 August, 2016, 2:51pm
UPDATED : Wednesday, 03 August, 2016, 6:38pm

Last week, High Court Judge Thomas Au Hing-cheung refused to hold an urgent hearing on the application for a judicial review of the Electoral Affairs Commission’s sudden decision to require an extra declaration from Legislative Council election candidates. That forced one applicant – Hong Kong Indigenous spokesman Edward Leung Tin-kei – to sign the form. However, it did not prevent him from being disqualified this week.

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Nominations for September’s election have now closed, and validated candidates include those who have signed as well as those who did not sign the form, which highlighted articles of the Basic Law acknowledging Hong Kong as an inalienable part of China.

Many see the form as an Electoral Affairs Commission tool to screen out those who refuse to sign. But with validated candidates including both those who signed and those who did not, and with sporadic questions targeted at a few but not all would-be candidates, it appears that the commission has no uniform criteria in dealing with known independence seekers and separatists.

The fact that only six have been barred from running because of their support for independence or separatism shows that the ultimate goal of introducing the form is not only to screen candidates. There is something else.

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It is inconceivable that the administration would not have sought legal opinion before the sudden introduction of the form two days before nomination opened, not only on the form’s legality, but also on other aspects, including the follow-up action to a number of possible scenarios. These include: one, a candidate simply refusing to sign; two, refusing to sign and vowing to continue to advocate independence for Hong Kong; three, signing but carrying on with actions in contravention of the relevant Basic Law articles during the election period or after being elected.

It boils down to the criminality of making a false declaration. It will be interesting to see whether a candidate who signed the declaration but continued to advocate independence during the election period or after he or she becomes a Legco member would and could be sued for making a false declaration.

Some lawyers have pointed out that in the case of a declaration to uphold the Basic Law, it would be difficult to lay criminal charges on such grounds and would entail in-depth cross-examination of the declarant’s mental state at the time.

In a 2009 judicial review case before the Court of Appeal, Mr Justice Frank Stock said in obiter dictum that “To conclude in the absence of cross-examination that a person ... has been deliberately untruthful on oath or affirmation on a material matter is a serious step indeed and, in my judgment, would be warranted only if the nature of the testimony itself or the surrounding circumstances as a whole forced the court to say that that was the irresistible conclusion.”

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Given the wide publicity and discussion of the contents of the declaration form, whether a pro-independence candidate actually signed it will, in the end, be a non-issue – should he or she be charged in future with making a false declaration because of any subsequent activities advocating independence. From an evidential point of view, the candidate could not claim in defence that he or she was not particularly aware of the relevant articles in the Basic Law as they have been forced into the spotlight – and so to that person’s attention when they signed the declaration.

Undoubtedly, the independence seekers who at the same time want to be legislators inside the established political order in Hong Kong face a real dilemma. The extra declaration serves not only as tool for political screening, but also as a test of integrity and political conviction.

It is up to the pro-independence candidates who have not been screened out to decide whether they will uphold decency and abide by what they openly advocated and thus possibly face criminal charges, or quickly become political rogues pretending to be one thing while acting like something else.

John Chan is a practising solicitor and a founding member of the Democratic Party