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Legislative Council elections 2016
Opinion

Hong Kong electoral officials acted within their scope in disqualifying candidates

Gu Minkang says the Basic Law makes clear that no amendments can result in Hong Kong independence, and aspiring legislators who do not abide by this are rightfully rejected

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Gu Minkang says the Basic Law makes clear that no amendments can result in Hong Kong independence, and aspiring legislators who do not abide by this are rightfully rejected
Gu Minkang
When a returning officer decides whether a nomination is valid, he is making a judgment on whether he honestly believes a candidate is fully qualified, according to legal requirements, based on the information supplied by the candidate or collected by the officer. Illustration: Craig Stephens
When a returning officer decides whether a nomination is valid, he is making a judgment on whether he honestly believes a candidate is fully qualified, according to legal requirements, based on the information supplied by the candidate or collected by the officer. Illustration: Craig Stephens
Hong Kong electoral officials have recently disqualified several pro-independence candidates from participating in next month’s Legislative Council election. And while some people are unhappy about the returning officer’s decision, it is necessary to ensure that the general public is not misled.

The first issue concerns whether Hong Kong independence violates Article 1 of the Basic Law. Former chairman of the Hong Kong Bar Association Edward Chan King-sang, for one, does not believe it does, saying the law can be amended and a person is able to uphold the law while wanting to change it. Under such an argument, a lawmaker could pursue independence through discussions with the Hong Kong and central governments on amending the law.

Disqualifying localist Legco candidates lets politics ‘eat into’ legal system, former Bar Association chair says

Under normal circumstances, such views are perfectly logical, as many laws can indeed be amended. However, this logic cannot be applied in the case of the Basic Law because any amendment would be subject to the limitations of Article 159(4), which states that “no amendment to this law shall contravene the established basic policies of the People’s Republic of China regarding Hong Kong”. In other words, any provision that reflects established policies cannot be changed.

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Article 1 states that the Hong Kong SAR “is an inalienable part of the People’s Republic of China”. This is a substantial part of the “established basic policies” and cannot be changed for at least 50 years. Therefore, it is clear that amendments to Article 1 cannot be used as a means to achieve independence. Such a move would violate Article 1. This is a matter of law, not opinion, and that is why the Hong Kong government acted immediately to issue a statement clarifying the position. This also shows that it is meaningful to include Article 159(4) in the confirmation form that aspiring candidates have been asked to sign.

I hope, therefore, that more Basic Law education programmes can be organised so the general public better understands this part of the Basic Law.

Lawyers are not the sole arbiters of who should stand in Legco elections: it’s a matter for us all

Hundreds of people gathered outside the government's headquarters for a pro-independence rally earlier this month. Photo: Photo: AFP
Hundreds of people gathered outside the government's headquarters for a pro-independence rally earlier this month. Photo: Photo: AFP
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