Wednesday, July 20, 2016

HKU Law Scholars on the 'Confirmation Form' Issue in the Legislative Council Elections 2016

Karen Cheung
Hong Kong Free Press
19 July 2016
Legal scholar and Basic Law Committee member Albert Chen Hung-yee says that there are grey areas in the law regarding the consequences for a Legislative Council election candidate who signs a declaration promising to uphold the Basic Law and then violates it.
     On a Monday RTHK show, Chen discussed a declaration that candidates are required to sign, which promises to uphold the Basic Law and to pledge allegiance to the Hong Kong Special Administrative Region. Chen said that it has not been clearly stated what the legal consequences are if a person signs and then violates the declaration. “Under current laws, there are no clear requirements, so it is a grey area.”
     Chen also said the existing laws do not require every candidate to sign a declaration, so the signature is an administrative arrangement. Therefore, it does not mean that all candidates who do not sign the declaration will not be able to get an effective nomination, he added.
     “It depends on the situation – if one has been advocating for Hong Kong independence and they refuse to sign the declaration… then the electoral officer may question whether the candidate is qualified to run,” Chen said...  Click here to read the full article.

Newswrap, RTHK Radio 3
19 July 2016
An associate dean at the University of Hong Kong’s Faculty of Law, Professor Simon Young, says elections laws make no reference to a form requiring potential Legislative Council election candidates to declare that Hong Kong is part of China. He says the assertion by the chairman of the Electoral Affairs Commission, Mr Justice Barnabas Fung, that it was merely introduced for administrative convenience, tends to play down the issue. Young tells Jim Gould that the form is redundant and has no legal force. Click here to listen to the interview.

Owen Fung & Tony Cheung
South China Morning Post
17 July 2016
At least 10 pan-democrat or independent hopefuls challenged a change to election rules, despite the risk of being disqualified, as the nomination period for the Legislative Council polls in September opened on Saturday.
     The controversial change targeting independence advocates required that candidates, as well as making the standard declaration to uphold the Basic Law, must also have to sign a new form to confirm a clear understanding of the mini-constitution – mainly concerning Hong Kong’s status as a special administrative region of China. Refusal to sign could risk disqualification.
     Pan-democrats complained that the new rules amounted to political censorship and planned to meet the chief of the city’s election watchdog over the matter on Tuesday... Rao said although the Basic Law did not explicitly prohibit independence advocates from running for Legco, “since the mini-constitution affirmed Hong Kong’s legal status, how could it allow a lawmaker to advocate the city’s separation from the nation?”
     But University of Hong Kong law professor Benny Tai Yiu-ting told the Post that candidates do not need to sign the form.
     “Electoral officers do not have the power to invalidate a candidate’s nomination simply because he did not sign the new form,” Tai said... Click here to read the full article.

David Tweed
Bloomberg
15 July 2016
Candidates for Hong Kong’s Legislative Council elections will be required to sign a form saying they understand the city is an inalienable part of China, the latest bid by the government to deter candidates who advocate independence.
     Contenders for in the Sept. 4 vote must declare they uphold the Basic Law, the city’s mini-constitution. They will now need to sign a further form confirming they fully understand the Basic Law articles that detail the city’s position as an administrative region of China, the election commission said on Thursday in a statement.
     “Anyone making a false declaration in the nomination form is liable to criminal sanction,” the commission said.
     “The government is obviously targeting candidates that are running on an independence platform,” said Michael Davis, a professor of constitutional law at Hong Kong University. “Even if someone signs the confirmation acknowledging the government’s interpretation, it would still be subject to question in the courts.”... Click here to read the full article.

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