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| Dr Charles KN Lam |
With great sadness we received the news that Dr Charles KN Lam (LLB 1998, PCLL 1999, LLM 2004, SJD 2017) passed away on 15 May 2019. Although Dr Lam's doctorate was on corporate governance and he taught business law at the Hong Kong University of Science and Technology, he was passionate about human rights and public law issues. This is a posthumous publication of his commentary written in March 2019 on the recent cases of disqualification of legislative candidates by returning officers.
Should disqualification of legislative candidates be allowed at the nomination stage by a returning officer?
A proposed plan to have an election court deal with the independence discourse
Dr Charles KN Lam
Introduction
In a hypothetical world or utopia, it is much better to have no disqualification of legislators at all.[1] But Hong Kong is a Special Administrative Region under the People's Republic of China (PRC). If there is an independence discourse, it is better to deal with it properly and internally. It is not desirable to have another unnecessary interpretation over Hong Kong or a more urgent and draconian Article 23 of the Basic Law (i.e. national security law) to be imposed on Hong Kong. After all, Hong Kong still needs to maintain law and order in society, including but not limited to the legislature. Hong Kong cannot bear the cost of going down the route of political turbulence. A stable and prosperous Hong Kong with well-entrenched institutions to protect the economy, the rule of law and individual rights and freedoms would be a good reference and example for China on its road to modernization.
There has been an unprecedented storm in Hong Kong recently in the political scene in relation to the disqualification of legislators and legislative candidates. This paper highlights the need for free and open elections where competent and capable candidates are allowed to openly compete for electoral seats with the right to vote and the right to stand for election in accordance with the law irrespective of political opinion and affiliation. It is argued that if there is an independence discourse on the part of any potential candidate, the returning officer is in no position to judge whether he or she is in breach of the law as they are not legally trained to judge on this issue and may make a decision mainly from a political perspective. After all, this should only be a legal judgement rather than political screening. It is better to have a well-entrenched judicial system to decide on this matter. It is therefore suggested that the Spanish example of the establishment of an Election Court may be followed in Hong Kong. An Election Court which is separate from the normal judiciary can provide a proper procedure and a full court hearing on both evidence and law to hear constitutional election petitions. The court would be in a better position to decide whether a candidate is honest and candid and whether he or she genuinely upholds the Basic law after hearing submissions on both sides in an adversarial system. It is crucial that a legislator of the HKSAR should swear allegiance to Hong Kong and the PRC as he or she is a legislator within the legislative institution and establishment. According to the press statement issued by the HKSAR government, "self-determination" or changing the HKSAR system by referendum which includes the choice of independence is inconsistent with the constitutional and legal status of the HKSAR as stipulated in the Basic Law, as well as the established basic policies of the PRC regarding Hong Kong. Upholding the Basic Law is a basic legal duty of a legislator. If a person advocates or promotes self-determination or independence by any means, he or she cannot possibly uphold the Basic Law or fulfil his or her duties as a legislator.”[2] All in all, a member-elect should take an oath in accordance with the Oaths and Declarations Ordinance and the Basic Law[3], if he or she is against the constitution and the constitutional set-up, it is doubtful whether he or she can become a legislator within the constitutional framework.[4] There are rules and procedures to follow in order to maintain law and order in society if one does not want to see Hong Kong go down the road of being a total mess-up. And if Hong Kong can deal with the issue of independence properly and internally, it is argued that an urgent and draconian Article 23 of the Basic Law will not necessary to be imposed on Hong Kong.
The meaning of self-determination and its relationship with the independence discourse
It seems that Miss Agnes Chow (Chow), a legislative candidate, was disqualified because, according to the returning officer, she asked for democratic self-determination and therefore failed to genuinely uphold the Basic Law and pledge allegiance to Hong Kong and China[5]. When it comes to the term “self-determination”, it may mean different things to different people. Some people would equate self-determination with independence while others would think self-determination is consistent with a high degree of autonomy under one country, two systems. As stated in the election petition[6], “this is why Demosisto advocates for a referendum on our future with constitutional effect, for Hong Kongers to legitimize Hong Kong’s sovereignty and self-governance. Even though Demosisto does not advocate for the independence of Hong Kong, in order to realize the ideal of ‘sovereignty of Hong Kong’, we agree that the referendum should include options such as independence and regional autonomy.” According to Albert Chen[7], self-determination is rooted in international law where people seek for independence under the colonial rule. And, according to him, it is problematic that some people now aspire to use referendum to decide whether independence is desirable in the future and is an option on the table. This is highly problematic as independence is not an option for Hong Kong under the constitutional principle of “one country, two systems” according to the Culture Fit theory, Economic Integration theory, Gratefulness theory and the fact that Hong Kong is a part of China for at least 3,000 years and Hong Kong people are generally against the idea of independence. As a legislator, he or she is entrusted with the legislative role and enacts laws on behalf of the Hong Kong people. The independence movement goes against the foundation of Hong Kong under the principle of one country, two systems. As a legislator, he or she should be the role model for the youngsters to follow and should not put forward a discourse or movement which is detrimental to the interest of Hong Kong, and practically it is also impossible given the fact that Hong Kong practises Chinese culture and customs for 3,000 years according to the Culture Fit theory.[8]
Nevertheless, when it comes to the independence discourse, instead of deciding on purely documentary evidence, a court of law with a full trial hearing should be invoked to discuss this constitutional issue fully through an election petition by an Election Court as discussed below. This is especially so as the returning officer had taken into consideration developments like the interpretation of Article 104 of the Basic Law by the Standing Committee of the National People’s Congress (SCNPC). In this respect, the returning officer was in no legal position to judge the constitutionality of Article 104 of the Basic Law and the interpretation by the SCNPC. In particular, the returning officer did not explain how Article 104 and the interpretation impacted upon her decision to disqualify the petitioner. Therefore, Chow argued that the returning officer did not follow the rule of natural justice to give her a reasonable opportunity to argue the case and put forward documentary and oral evidence to prove otherwise.
In an article by Po Jen Yap and Eric Chan[9], the authors observed that the Court of Appeal held that para 2(3) of the SCNPC’s interpretation automatically disqualified the pair of lawmakers forthwith from assuming their offices. “The term ‘automatic’ or automatically is found nowhere in the Interpretation. The Interpretation only uses the term ‘forthwith’, which means ‘without delay’, and it would not be inconsistent with the Interpretation for the CA to punt the issue over to the President to proceed with the disqualification expeditiously.”[10] With respect, the word “forthwith” also means “immediately” according to the Oxford Dictionary. As the authors agreed that whether the oath taken is valid or not is an issue for the court to decide, once the court decides it as invalid, the oath taker is disqualified forthwith or immediately from assuming public office. In addition, according to para 2(4) of the Interpretation, if the oath taken is determined as invalid, no arrangement shall be made for retaking the oath. And the oath-taker is disqualified forthwith or immediately. Thus, even if the word “forthwith” simply means without delay but not automatic, when the court refers the issue back to the President of the Legislative Council to decide, he will still be bound by the Interpretation, which precluding taking the oath a second time, unless one can argue the rule against retrospectivity of the NPCSC interpretation is applicable to the present case. As said by the authors, “therefore, the presumption against retrospectivity is not displaced and if the Interpretation is viewed as a piece of legislation, it should not operate retrospectively to events that predated its announcement.”[11]
The way forward for the younger generation in an open society
The above discussion is highly philosophical, a label like self-determination is not going to generate any benefits to Hong Kong. It is advisable to drop the label of self-determination but Hong Kong people can still manage and decide their future under a high degree of autonomy[12] with Hong Kong people ruling Hong Kong.[13] In the words of Albert Chen, “where the population in a particular area of a nation-state is sharply distinguishable from those in other areas by reason of some of these factors, it may demand a high degree of autonomy for the purpose of protecting certain basic interests or values against encroachment by the nation-state as a whole.”[14] That is why Hong Kong is given a high degree of autonomy with Hong Kong people ruling Hong Kong since the two systems are very different and the purpose of a high degree of autonomy is to protect basic interests of the people against “encroachment” by the national power.[15]
It seems that after the challenge of the returning officer, some parties had deleted the term “self-determination” in their manifestos. There is an urgent need to revisit the party’s goals and manifesto. However, merely deleting the term in the manifesto is not going to change the whole political perception and landscape. The younger generation should do more to demonstrate that they uphold the Basic Law and the principle of one country, two systems. They should offer their olive branches and be more cooperative by discussing the political issues with the government or even joining government committees like the Youth Committee. With this kind gesture, it will be very surprising to the public if the government does not respond proactively. In an open society, according to Karl Popper[16], it takes two to tango and it is always better to have open discussion and dialogue. A closed-door policy is not going to provide a harmonious atmosphere for discussion and collaboration. Participation in politics by the younger generation should not be marginalized but instead should be highly encouraged.
Why the disqualification issue should be handled by a court of law instead of a returning officer
Currently, there are specific grounds under the Legislative Council Ordinance where a legislative candidate can be disqualified. According to section 39 of the said Ordinance, a person is disqualified from being nominated as a candidate at an election and from being elected as a member if he or she: (a) is a judicial officer; (b) an officer of the Legislative Council; (c) has in Hong Kong or any other place, been sentenced to death or imprisonment; (d) has been convicted of treason; (e) on the date of nomination, or of the election, is serving a sentence of imprisonment; (f) is or has been convicted, within 5 years before the polling day, of having engaged in corrupt or illegal conduct…; (g) is ineligible or disqualified because of the operation of the Legislative Council Ordinance or any other law; (h) is a representative or a salaried functionary of the government of a place outside Hong Kong; (i) is a member of any national, regional or municipal legislature, assembly or council of any place outside Hong Kong…; (j) is an undischarged bankrupt…; (k) is found for the time being to be incapable, by reason of mental incapacity, of managing and administering his or her property and affairs..; (l) at a by-election, has resigned…. (paraphrasing from the Legislative Council ordinance)
Disqualification of a legislative candidate should be based on objective and specific grounds mentioned in the above provision. Many of the abovementioned grounds are a matter of fact without any dispute like conviction of a crime or sentenced to imprisonment. It is nowhere in the law to disqualify a candidate by a returning officer based on political opinions or political affiliations. And independence movement or organizing activities to bring about independence is not listed as a ground of disqualification under the current law.
If there is any disqualification issue, it is argued that it is far better to be handled by a judge than a returning officer. A returning officer is entrusted with executive and administrative authority to carry out political decisions but without sufficient legal training to determine the legal qualifications of a potential candidate. A judge would be impartial and listen professionally to the submission on both sides. He or she would be in a better position to decide whether a candidate genuinely upholds the Basic Law and owes allegiance to HK and the PRC in accordance with the Oaths and Declarations Ordinance, the Basic Law and the recent SCNPC’s interpretation.[17] A judge can decide which side is more reliable and trustworthy in the process of examination and give weight on the evidence accordingly. It is undoubtedly true that this is a sensitive issue, it may be better done outside the judiciary, like through a commissioner (e.g. the Commissioner on Interception of Communications and Surveillance in Hong Kong) with a panel of retired judges established outside the judiciary to determine the legal qualifications (as opposed to political screening) of a candidate.
Nevertheless, it may be too premature to screen out all candidates at the nomination stage through the commissioner without opportunity being given to them to articulate their political aims, goals and aspirations and fully debate them in different election platforms so that voters would be able to judge whether they put forward a political cause which is in tune with the best interest of Hong Kong or not. Voters would also be able to judge whether the candidates genuinely uphold the Basic Law and owe allegiance to Hong Kong and China as a result of the whole election process and debate. As explained below, voters should, therefore, think twice before casting their votes as the elected legislators may be amenable to subsequent disqualifications, thus making the election process and their decision a futile one. For the candidates, they would be given a chance to demonstrate their competence and capability and be able to put forward an agenda that is in line with the best interest of Hong Kong in the long run.
Rights to vote and stand for election according to the HKBOR and ICCPR
It seems that Chow does not oppose strongly against the political screening on the part of the returning officer but the returning officer did screen out and disqualify her. In any event, I think she should be properly advised to challenge the disqualification made by the returning officer based on the Hong Kong Bills of Rights Ordinance and the International Covenant on Civil and Political Rights. Moreover, Chow would argue that she has fundamental rights to vote and stand for election in accordance with the HKBOR and the ICCPR. According to the Hong Kong Bills of Rights Ordinance[18], every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions- (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.
Chow would, therefore, argue that it is not consistent with the law that she has the right to participate in public election. In fact, as strongly put forward by all members of the legal subsector of the Election Committee, “disqualification of candidates with certain political opinion or affiliation frustrates the core purpose of an open and fair election, which is to guarantee the free expression of the will of the electors…”[19] Thus, it would be premature to screen out her candidature at the initial nomination stage by a government officer or better known as a returning officer. It is not international practice to screen out candidates at the nomination stage by an executive officer for political affiliation. It is instead the rule of man rather than the rule of law based on a well-entrenched system.[20]
According to the Legislative Council Ordinance and the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (the Regulation)[21], the returning officer must, as soon as practicable after receiving a nomination form, decide…whether or not a person is validly nominated as a candidate. It is nowhere in the law to empower a returning officer to judge whether a candidate is acting in line with the Basic Law, other legal requirements and pledge allegiance to Hong Kong and China.[22] Those questions can only be decided by a court of law. According to the press statement[23] issued by the Electoral Affairs Commission, “for questions as to whether the statutory nomination procedure has been duly completed, the Returning Officer will seek the advice of the Department of Justice as necessary and take appropriate action to ascertain whether or not the nomination of the candidate concerned has complied with the legal requirements.” Having said that, it does not change the statutory requirement that a returning officer is the only person to decide on the validity of the nomination of legislative candidates. It should be noted that even the Electoral Affairs Commission (EAC) attempted to distance itself from the returning officers by saying that “the decision on whether a nomination is valid or not is solely made by the Returning Officer having regard to requirements under the law. While the EAC would assist the Returning Officers to discharge their statutory duties, it does not have any statutory power and role to play with regard to the decision made by the Returning Officers.”[24] It thus only adds subjectivity to the nomination process.
Rights to vote and stand for election are subjected to “reasonable restrictions” by an election petition
However, political rights, like other rights, are not absolute but may be restricted in accordance with the law. Thus, the Hong Kong Bills of Rights Ordinance states that it should not be done “without unreasonable restrictions.” According to the Legislative Council Ordinance[25], an election may be questioned only by election petition made on specified grounds:
(1)An election to return a Member may be questioned only on the following grounds—
(a) the ground that the person declared by the Returning Officer in accordance with regulations in force under the Electoral Affairs Commission Ordinance to have been elected as a Member at the election was not duly elected because—
(i) the person was ineligible to be, or was disqualified from being, a candidate at the election; or
(ii) corrupt or illegal conduct was engaged in by or in respect of that person at or in connection with the election; or
(iii) corrupt or illegal conduct was generally prevalent at or in connection with the election; or
(iv) material irregularity occurred in relation to the election, or to the polling or counting of votes at the election; or
(b) a ground specified in any other enactment that enables an election to be questioned.[26]
Leung and Yau’s case--The meaning of “upholding the Basic Law” and “bear allegiance” to Hong Kong and China
In some countries like Australia[27] and the United State of America[28], they have added some grounds in addition to the above one like treason, infamous crime or other criminal offences in order to disqualify the elected legislators and other public officers. In fact, the Chief Executive Election Ordinance of Hong Kong also provides the disqualification ground based on treason.[29] In the recent Leung and Yau’s case[30], the Court of Final Appeal rejected the non-intervention principle because of its constitutional duty and obligations to determine whether a legislator takes an oath solemnly and swears allegiance to Hong Kong and China in accordance with the law i.e. the Oaths and Declarations Ordinance, the Basic Law and the interpretation[31] made by the Standing Committee of the National People’s Congress. Moreover, the Court of Final Appeal confirmed that finding of fact by Au J of the Court of First Instances that they (i.e. Leung and Yau) “manifestly refused (and thus declined) to solemnly, sincerely, truly bind themselves to uphold the Basic Law or bear true allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China….”[32] The courts came to this conclusion by referring to the oath-taking process that “each of them used the term ‘Hong Kong nation’ right at the outset of oath-taking” and each of them mispronounced the word ‘China’ consecutively for three times, as Geen-na or Sheen-na” and “each of them also intentionally unfolded and displayed a blue banner bearing the words ‘HONG KONG IS NOT CHINA”.[33] Thus, there is ample evidence to show that they were not taking an oath in a solemn manner and they refused to uphold the Basic Law and bear true allegiance to Hong Kong or more correctly, China. This case sheds light on the meaning of “upholding the Basic Law” and “bear allegiance” to Hong Kong and China.
Nevertheless, for future reference and application, “upholding the Basic Law” and “bearing allegiance” are not limited just to the oath-taking process. Legitimate questions would be asked such as what kinds of political activities have the elected legislator engaged in before, what political agenda has he or she has put forward, what election campaigns and strategies have he or she used and what are thepolitical party’s goals and manifesto and, last but not least, any change or departure in political platform since he or she became a politician? Furthermore, witnesses will be called, examined and cross-examined by both sides and relevant evidence and documentary evidence will be admitted to considering as in the case of a normal court proceeding and in accordance with the rule of procedure and evidence. Thus Au J said, “given the objective assessment, the court would look at the conducts, manner and words adopted by an oath taker in taking the Legislative Council’s Oath with a view to deciding what meaning those conducts, manner and words convey to a reasonable person and whether he or she intentionally acted in such a way.”[34] This objective exercise can be done through the examination of documentary and oral evidence to be admissible in a court of law.
According to the SCNPC’s interpretation, an oath taker must take the oath sincerely and solemnly and must accurately, completely and solemnly read out the oath prescribed by law, the content of which includes “will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China”. It is thus argued that if an oath-taker engages in activities to achieve independence, he or she could not possibly owe allegiance to Hong Kong and China at the same time as independence means separating from China and denying Hong Kong is an inalienable part of China according to the Basic Law.[35]
The disqualification of four legislators by the Hong Kong Court of First Instance (or CFI’s case)[36]
The Interpretation by the SCNPC has been applied in the CFI case by Au J to disqualify the four legislators based on the grounds of the Exact Form and Content Requirement (i.e. the oath taker must accurately and completely read out the oath as prescribed without any deletion or addition to the standard oath)[37], the Solemnity Requirement (i.e. the oath taker has to take the oath in a dignified and formal way and manner which is consistent with the important commitment of the oath taker to bind himself to bear true allegiance to Hong Kong and China) and the Substantive Belief Requirement (i.e. the oath taker must faithfully and genuinely commit and bind himself to uphold and abide by the obligations set out the in the Legislative Council’s Oath).[38] Counsel for the legislators argued that the oath-taking process is a ritual or a mere formality irrespective of his or her belief in the oath that has been taken. However, it is only after the oath-taking process that a member-elect can duly become a formal legislator. He or she is also making an oath in accordance with the Oaths and Declarations Ordinance which must be truthful, honest and solemn, failing which it is against the law. He or she is pledging to owe allegiance to Hong Kong and China. It could not just be a mere formality or a ritual that a member-elect is completely free to take an oath in whatever manner or format that he or she so prefers. If that is the case, there is no need to have the standard legislative council’s oath to be taken in accordance with the form and substance of the law before one can swear in as a legislator.
The Spanish example: the Election Court to deal with the independence discourse
The above CFI case has already made it clear that support for an independence movement could not be regarded as upholding the Basic Law and swearing allegiance to Hong Kong and China. In the words of Au J, “someone who advocates and supports the independence of Hong Kong would obviously be regarded as not have a genuine and sincere intention to commit himself to those allegiances….”[39] Au J also emphasized that independence is not the only ground of disqualification and “it must be open to court to find the same when appropriate in other circumstances.”[40] Therefore, with or without an amended piece of legislation to deal with the independence issue, the court is prepared to allow independence movement as an objectionable ground for owing allegiance to Hong Kong and China. Thus, it is still better to deal with the independence discourse with an update of the law (like changing the procedural rule and local legislation) after a wide public consultation as to how Hong Kong should position in light of such a discourse. In any event, with or without the amended legislation, a legislative candidate is going to challenge the decision of the returning officer by filing an election petition anyway. Certainty of the law requires the law to be spelt out in a precise manner after considering it fully and consulting it widely. It is pertinent that Hong Kong should deal with this issue properly and internally.
If it is too premature to disqualify a candidate at the nomination stage by a returning officer based on the premise that there is an independence discourse that he or she fails to uphold the Basic Law, it would be better to follow the Spanish example of having an Election Court to deal with the matters. According to the Parliamentary Election Act in Spain,[41]
The election of a candidate as a Member of Parliament shall be declared to be void on an election petition on any of the following grounds which may be proved to the satisfaction of an Election Court, namely-
(a) that by reason of general bribery, general treating or general intimidation, or other misconduct or other circumstances, whether similar to those before enumerated or not, the majority of electors were or may have been prevented from electing the candidate whom they preferred;
(b) non-compliance with the provisions of this Act relating to elections, if it appears that the election was not conducted in accordance with the principles laid down in such provisions and that such non-compliance affected the result of the election;
(c) that a corrupt or illegal practice was committed in connection with the election by the candidate or with his knowledge and consent or by an election agent of the candidate or with the knowledge and consent of an election agent of the candidate;
(d) that the candidate was at the time of his election a person disqualified for election as a Member of Parliament.
In Spain, an Election Court shall have the same powers, jurisdiction and authority as the Supreme Court at the trial of a civil cause without a jury, and shall be a court of record.[42] An Election Court may examine any witness so compelled to attend or any person in court…., such witness or person may be cross-examined by or on behalf of the petitioner and respondent, or either of them.[43] This is also in accordance with the Hong Kong Bill of Rights Ordinance[44] which provides that “…everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…” For a matter as important as qualifications of a legislator with the supporting voters behind, it could not be simply handled by a returning officer as an administrative matter to screen out the candidates at the nomination stage. Due court process and fair procedure should be provided to a legislative candidate before political rights are taken away from him or her as a matter of natural justice with reasonable restrictions.
How should the new law be drafted and applied to cope with the independence discourse?
Any person with a vested interest (like the voters) can file a petition to the Election Court that the elected legislator is undue and illegal to be elected[45], for example, because he is convicted of any infamous crime, treason or engaged in any criminal activities to bring about independence—it depends on how one writes it into the law. As a matter of common law principle, the disqualifications grounds should be clearly stated in the law without any ambiguity. Certainty of the law requires the law on the statute book should be precise for reference to all without a tinge of doubt.[46] As argued before, there should be no political vetting or screening at the nomination stage. However, the Confirmation Form[47] as requested by the Electoral Affairs Commission should still be signed, declaring that a legislative candidate upholds the Basic Law and pledge allegiance to Hong Kong and China. This important declaration would be relevant information for the Election Court to consider if there is any election petition brought to their attention. If there is a conflict between the textual/literal approach grounded in the Confirmation Form and the perceived intention of a member-elect that he or she fails to pledge the required obligations, the court can only judge the mental intention by examining all available and admissible oral and documentary evidence like organizing independence activities and rallies in the public place, recruiting party’s members openly to organize the independent activities as a political party, etc. In this respect, the grounds[48] to be questioned by an election petition should be expanded to include engaging in criminal activities to bring about independence which is against the Basic Law[49] because Hong Kong is an inalienable part of China and is a local administrative region of China etc.
An independent and impartial Election Court should be set up to deal with the topical issues: a legal judgment instead of a political decision or screening
There should be a fundamental difference between people merely talking about the independence issue (as people treasure freedom of expression[50] in Hong Kong which is protected under the Basic Law and Hong Kong Bill of Rights Ordinance) and people using any means, violent acts or criminal activities to bring about and realize the goal of independence. As the independence discourse is bound to be sensitive, the Election Court should be composed of well-experienced and retired judges who are independent from the judiciary in order to relieve the overwhelming burden on the judiciary. It would enable the Election Court to analyse the issue and arrive at an impartial judgment based on legal judgement instead of political decision or screening.[51] As counsel acting for the members-elect in the CFI case argued there are a lot of political issues arising from adjudicating on whether a member-elect genuinely and solemnly takes the legislative oath or not.[52] It is one thing to have the court’s assurance that it would separate politics from legal judgement[53], it is quite another thing as a matter of public perception. In the words of Lam J, “it is for this very reason that the Chief Judge had to stop Mr. Yu when counsel at one stage unwittingly treaded beyond the proper scope of legal arguments by quoting from Socrates on abuse of democracy. It is important that we keep politics out of the judicial process.”[54] As there are a lot of politically sensitive issues to be considered in the process of adjudication, justice must be seen to be done in allowing an Election Court to deal with hot-button issues independently.
Conclusion
At the conclusion of the trial of an election petition, the Election Court shall determine whether the Member of Parliament whose election or return is complained of was duly returned or elected, and whether the election was void, etc.[55] It should also be noted in the CFI case[56], Au J said that the court is the final arbiter in determining whether an oath taker has declined or omitted to take the Legislative Council’s Oath in failing to comply with the legal and constitutional requirements. It is suggested that the court should not only have the adjudicative power to determine the oath-taking process but an Election Court, which is independent from the judiciary, should also have the power to hear dispute about the disqualification of a member-elect arising from an election petition. Thus, through the Election Court, the court has the final adjudicative power to determine the qualification of the legislators as to whether they owe allegiance to Hong Kong and China as part of the institutional establishment.
Notes
[1] In the United Kingdom, the Houses of Commons Disqualification Act 1975 provides that holders of certain offices like judges, civil servants, members of the armed forces, member of police forces, member of foreign legislatures etc. are disqualified from membership of the House of Commons. See Neil Parpworth, Constitutional and Administrative Law (Oxford University Press, 2010).
[2] Press statement issued by the HKSAR government on 27 January, 2018 which is available at https://www.info.gov.hk/gia/general/201801/27/P2018012700291.htm.
[3] Article 104 of the Basic law.
[4] For a discussion about the constitutional structure and set-up in Hong Kong, see Danny Gittings, Introduction to the Hong Kong Basic Law (HKU Press, 2016). For a discussion on the development of the Hong Kong constitutional history, see Albert Chen, “From Colony to Special Administrative Region: Hong Kong’s Constitutional Journey” in Raymond Wacks (ed.) The Future of the Law in Hong Kong (Oxford University Press, 1989).
[5] In some countries, they have objective standards to judge whether a legislative candidate pledges allegiance to a country like by taking an oath duly and surrendering foreign passports. In fact, according to the Basic Law, Hong Kong legislators should generally be permanent residents of Hong Kong without foreign passports.
[6] Election Petition by Agnes Chow Ting (Constitutional and Administrative Law List No. 804 of 2018).
[7] TVB News program.
[8] Charles K. N. Lam and S. H. Goo, "Confucianism and its theoretical application to the corporate world in China" (2015)33(5) Company and Securities Law Journal 332.
[9] (2017) 47 HKLJ 1-15.
[10] Ibid, at p.4.
[11] Ibid, at p.15.
[12] For a discussion of different kinds of autonomy like formal and substantive autonomy, legalistic and informal autonomy, capacity and decision-making autonomy etc., see Albert Chen, “Some reflections on Hong Kong’s autonomy” (1994)24 HKLJ 173.
[13] Article 2 of the Hong Kong Basic Law.
[14] Albert Chen, “The relationship between the central government and the SAR”, Peter Wesley-Smith and Albert Chen (ed.) The Basic Law and Hong Kong’s Future (Singapore: Butterworths, 1988), p.109.
[15] According to Albert Chen, “the significant fact in this regard is that almost no member states of federal states or autonomous governments in unitary states exercise complete autonomous powers over all of the following crucial matters of government—finance and taxation, monetary affairs, the issue of currency, customs, entry and exit controls, external trade relations, basic areas of law such as criminal law, criminal procedure, civil law and civil procedure—whereas the SAR will exercise full autonomy over all these under the Joint Declaration.” Ibid. at p.115.
[16] Karl Popper, The Open Society and Its Enemies (Routledge, 2012).
[17] According to the Leung and Yau’s case, the Court of Final Appeal held that the need to take a legislative oath in a sincere and solemn manner is clearly laid down in the Oaths and Declarations Ordinance, with or without the interpretation of the Standing Committee of the National People’s Congress. But the said interpretation made it crystal clear that an oath taken should be in a particular format and manner with corresponding legal consequences. And the interpretation is also binding on the Hong Kong courts. See FAMV Nos. 7, 8, 9, 10 of 2017, para 30.
[18] Article 21 of the Hong Kong Bills of Rights Ordinance and Article 25 of the International Covenant on Civil and Political Rights.
[19] Joint statement issued by all members of the legal subsector of the Election Committee which is available at https://www.facebook.com/148076955294303/posts/joint-statement-of-all-members-of-the-legal-subsector-of-the-election-committee1/1267576460011008/.
[20] See Dennis Kwok, Letter to Hong Kong, 28 October 2018.
[21] Section 42A of the Legislative Council Ordinance and section 16(3) of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (the Regulation).
[22] Some barristers, like Warren Chan argued that it is very strange that even after a candidate signs the nomination form and the confirmation form, a returning officer still challenges whether he or she genuinely in his heart upholds the Basic Law.
[23] The press statement is available at https://www.info.gov.hk/gia/general/201607/19/P2016071900950.htm.
[24] Ibid.
[25] Article 61 of the Legislative Council Ordinance.
[26] See also Guidelines on Election-related Activities in respect of the Legislative Council Election, Chapter 6.
[27] See also section 13A of the Constitution Act 1902 of New South Wales of Australia.
[28] Article I, section 6 and Article II, section 4 of the Constitution of the United States of America.
[29] Section 14 of the Chief Executive Election Ordinance.
[30] FAMV Nos. 7, 8, 9, 10 of 2017.
[31] It should be noted that the SCNPC’s interpretation is not based on the local legislation (i.e. Oaths and Declarations Ordinance) but is an interpretation based on Article 104 of the Basic Law which is within the limits of power of the SCNPC.
[32] FAMV Nos. 7, 8, 9, 10 of 2017 at para 15 of the judgment.
[33] Ibid, at para 8 of the judgment.
[34] Constitutional and Administrative Law List no. 223 of 2016, The Court of First Instance, para 37.
[35] Article 1 of the Hong Kong Basic Law.
[36] Constitutional and Administrative Law List no. 223 of 2016, The Court of First Instance.
[37] The court has adopted a very stringent approach in disqualifying Yiu Chung Yim even though he may still pledge allegiance to Hong Kong and China with no intention to flout the requirements of the law but just fail to meet the exact oath’s words and form. Thus, Au J said “Compliance with the exact form of the oath is, therefore, a separate and distinct legal requirement for a valid oath taking.” It thus sets a very high standard for a member-elect to follow strict adherence to the form of the law without looking at the substance of it and intention behind goes against the rule of justice and equity. Ibid at para 216.
[38] Ibid, para 28-32.
[39] Constitutional and Administrative Law List no. 223 of 2016, The Court of First Instance, para 98.
[40] Ibid.
[41] Section 79 of the Parliamentary Elections Act.
[42] Section 80(3) of the Parliamentary Elections Act.
[43] Section 80(8) of the Parliamentary Elections Act.
[44] Article 10 of the Hong Kong Bill of Rights Ordinance.
[45] Section 81 of the Parliamentary Elections Act.
[46] See Lord Bingham, The Rule of Law (Penguin, 2011).
[47] The Electoral Affairs Commission issued a press statement saying that it is legal and constitutional to ask the candidates to sign a Confirmation Form in accordance with the content of the Basic Law. The press statement is available at https://www.info.gov.hk/gia/general/201607/19/P2016071900950.htm.
[48] Section 61(1) of the Legislative Council Ordinance.
[49] Article 1 and 12 of the Hong Kong Basic Law.
[50] According to Ronny Tong, while it may be fine to talk about the independence issue based on freedom of expression, it is problematic to form a political party to achieve independence through party’s means according to the Societies Ordinance. See Straight Talk, TVB on 31 July 2018. In addition, according to Article 16 of the Hong Kong Bill of Rights Ordinance, “…everyone shall have the right to freedom of expression…it may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary—… (b) for the protection of national security…” Thus, arguably, as there is no local legislative enactment of Article 23 of the Basic Law up to the present moment, Hong Kong people should enjoy freedom of expression to a large extent except it is regulated by the law of slander and libel, etc. Having said that, the independence discourse should be one of the subject matters under the legislative scrutiny of the law of national security.
[51] Similarly, Au J said, “it is solely a question of law whether an oath taken is compliant with the requirements prescribed by the constitution and the relevant statutes. The question of legal compliance is and should not be political one.” Constitutional and Administrative Law List no. 223 of 2016, The Court of First Instance, para 55.
[52] Constitutional and Administrative Law List no. 223 of 2016, The Court of First Instance, para 54.
[53] Ibid, at 55-57.
[54] Hong Kong Court of Appeal Civil Appeal No. 224 of 2016, para 68.
[55] Section 85 of the Parliamentary Elections Act.
[56] Constitutional and Administrative Law List no. 223 of 2016, The Court of First Instance.
