Legislative Council elections 2016

Lawyers question power of returning officers to disqualify Hong Kong poll candidates

Subjective decisions by civil servants amount to political censorship and screening, legal experts argue

PUBLISHED : Wednesday, 03 August, 2016, 11:20pm
UPDATED : Wednesday, 03 August, 2016, 11:27pm

The raging controversy over eligibility for the Legislative Council elections boils down to whether returning officers have the power to investigate the “genuineness” of candidates’ declarations and accordingly disqualify their bids.

There are also doubts as to whether the officers who disqualified six pro-independence candidates bypassed an independent committee tasked to provide legal advice on the validity of nominations.

The role of these officers has been challenged in a joint statement by all 30 legal sub-sector members of the 1,200-strong Election Committee, which is responsible for choosing Hong Kong’s chief executive. Among them – all members or supporters of the pan-democratic camp – are former Bar Association chairmen Edward Chan King-sang SC and Philip Dykes SC.

How the election ban on Hong Kong localist leader could tip the balance when people vote

Section 40 of the Legislative Council Ordinance only requires a candidate to sign a declaration stating that he or she will uphold the Basic Law, they wrote in the statement issued yesterday.

“[The ordinance] does not give the returning officer any power to inquire into the so-called genuineness of the candidates’ declarations, let alone making 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.”

The role of returning officers was thrust into the spotlight after Cora Ho Lai-sheung’s decision to disqualify localist leader Edward Leung Tin-kei.

In her letter to the Hong Kong Indigenous candidate, Ho attached Leung’s Facebook posts, newspaper clippings and cited transcripts of his remarks at press conferences in concluding that she “[did] not trust Mr Leung genuinely changed his previous stance for independence”.

The returning officer disqualified Leung even though he had publicly agreed to stop pushing for independence and signed an additional declaration form cementing his acceptance of the Basic Law and Hong Kong’s status as an alienable part of China.

Arbitrary and unlawful exercise of powers by government officials ... are most damaging to the rule of law in Hong Kong
The statement by the lawyers

Returning officers for the September 4 elections are originally district officers under the Home Affairs Department. These civil servants were appointed by the Electoral Affairs Commission to take charge of procedural tasks for the polls, including processing nominations and collecting deposits from candidates. They will also be in charge of vote counting on polling day.

Ho’s post-nomination inquiry about Leung’s commitment to the Basic Law and decision to disqualify him “are not only unlawful but amount to political censorship and screening ... without any legal basis”, the 30 lawyers said in their statement.

“Arbitrary and unlawful exercise of powers by government officials ... are most damaging to the rule of law in Hong Kong” they continued. And it would undermine people’s confidence in Legco, they said, adding that the right to stand for election was a fundamental right also enshrined in the city’s mini-constitution.

But Secretary for Justice Rimsky Yuen Kwok-keung said officers did have the power to consider some evidence – as they had done in the past. He did not specify any past cases.

One of the Election Committee members challenging the authorities over the controversy, Eric Cheung Tat-ming, queried whether the returning officers had sought advice from the Nominations Advisory Committee, which comprises six barristers.

The law says returning officers “may” apply in writing for advice from the committee over whether a candidate should be disqualified. Once that advice is given, the officer must refer to it when making the decision.

The Registration and Electoral Office noted the committee’s role over disqualification but said the law did not empower the committee to advise over matters concerning candidates’ declaration to uphold the Basic Law.