2016 Hong Kong Legislative Council candidates' disqualification controversy

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A controversy arose during the 2016 Legislative Council election in Hong Kong as the Electoral Affairs Commission (EAC) banned six potential localist candidates from running for the Legislative Council of Hong Kong (LegCo). The EAC carried out a new election measure to require all candidates to sign an additional "confirmation form" in the nomination to declare their understanding of Hong Kong being an inalienable part of China as stipulated in the Article 1, Article 12 and Article 159(4) of the Basic Law of Hong Kong.

Contents

Localist Hong Kong Indigenous's Edward Leung and pan-democrat League of Social Democrats (LSD) Avery Ng sought a judicial review but the court refused to immediately hear the judicial reviews. Leung subsequently signed the confirmation form but was asked by returning officers whether they would still advocate independence along with some other localist candidates including Civic Passion's Alvin Cheng and Hong Kong National Party's Chan Ho-tin.

After the end of the nomination period, nominations of six localist candidates, Hong Kong National Party's Chan Ho-tin, Democratic Progressive Party's Yeung Ke-cheong, Nationalist Hong Kong's Nakade Hitsujiko, Conservative Party's Alice Lai Yee-man, Hong Kong Indigenous's Edward Leung and independent Chan Kwok-keung, were "invalidated"; Edward Leung's nomination was rejected by EAC returning officer Cora Ho Lai-sheung on the basis that she did not trust Leung had "genuinely changed his previous stance for independence."

Course of events

Confirmation form

On 14 July 2016, the Electoral Affairs Commission (EAC) announced its plan to require all candidates to sign an additional "confirmation form" in the nomination to declare their understanding of Hong Kong being an inalienable part of China as stipulated in the Article 1 of the Basic Law, Article 12 which stated that the Hong Kong Special Administrative Region (HKSAR) shall be a local administrative region of the People's Republic of China (PRC), which shall enjoy a high degree of autonomy and come directly under the Central People's Government, as well as Article 159(4) which stipulated that no amendment to the Basic Law shall contravene the established basic policies of the PRC regarding Hong Kong (i.e. Hong Kong should be a special administrative region of the PRC under the “one country, two systems” principle). Article 104 also required members of the Legislative Council to swear to uphold the Basic Law and swear allegiance to the Hong Kong Special Administrative Region before assuming office. [1]

As many potential localist candidates are advocating or promoting Hong Kong independence, the EAC stated that “independence of the HKSAR” was 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. [1] It also stated that returning officers were required to take into account all relevant information before deciding whether a nomination is valid according to Legislative Council Ordinance (Cap. 542)  § 42A and Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation 541D § 16 (the Regulation) and request the candidate to provide any other information the returning officer deems appropriate to satisfy him/her that the nomination is valid according to Sections 10 or 11 of the Regulation. [2] Hong Kong Human Rights Monitor director Law Yuk-kai criticised the government's move as "censorship of political ideas" and a breach of freedom of thought. [3]

Localist candidates reacted differently to the new measure. Civic Passion's Alvin Cheng signed the confirmation form when he submitted his nomination to run in the Hong Kong Island constituency. Civic Passion spokesman and New Territories West candidate Cheng Chung-tai justified the group's decision as a form of civil disobedience.

Edward Leung of the pro-independence Hong Kong Indigenous who won over 66,000 votes in February's New Territories East by-election said he would not sign the form and would seek a judicial review. [3] The pan-democrats also stated they would boycott the new election measure by not signing the additional form. [4]

Returning officers' emails

On 22 July, Edward Leung, who had not yet signed the confirmation form, received email from the EAC asking if he would still advocate Hong Kong independence after submitting the original nomination form stating he would uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region. Civic Passion's Alvin Cheng and the Hong Kong National Party's Chan Ho-tin both received similar emails on 25 July. [5] Two other localist candidates, Nationalist Hong Kong's Nakade Hitsujiko and Conservative Party's Alice Lai Yee-man, received similar emails in the following days. Those questions were claimed to be a factor to determine the validity of their nominations.

Judicial review attempt

Represented by Senior Counsel Martin Lee, Edward Leung and pan-democrat League of Social Democrats (LSD) chairman Avery Ng and general secretary Chan Tak-cheung filed a judicial review, arguing that the EAC had acted beyond its powers, and accuse the government of political censorship. On 27 July, High Court judge Justice Thomas Au Hing-cheung refused to immediately hear the judicial reviews, as he said he saw no urgency in dealing with the case before the end of the nomination period. [6] After the court's decision, Leung agreed to sign the confirmation form. [7]

Invalidations

On 30 July, Chan Ho-tin received an email from the EAC which said his nomination in New Territories West had been "invalidated" as he did not comply with the Legislative Council Ordinance (Cap. 542)  § 40 (1)(b), since he had refused to sign the additional confirmation form. [8]

A day after, Yeung Ke-cheong of the localist Democratic Progressive Party, positioned second on a candidate list with Jonathan Ho Chi-kwong in Kowloon West was also invalidated as he, unlike Chan, explicitly rejected the Basic Law by not signing both the original and additional confirmation forms to pledge to uphold the Basic Law. Yeung said he would launch a judicial review. [9]

Pro-independence candidate Nakade Hitsujiko for New Territories West became the third candidate to be disqualified on 1 August even though he had signed the new form. [10] He had also previously run in 2015 District Council election.

On 2 August, three more localist candidates were disqualified, Conservative Party's Alice Lai Yee-man in Hong Kong Island, Hong Kong Indigenous' Edward Leung who ran in February and received more than 66,000 votes in the New Territories East by-election and independent Chan Kwok-keung in New Territories East while nominations of Clarence Ronald Leung Kam-shing and Yau Man-king on Chan's list were validated. [11] In her letter, EAC returning officer Cora Ho Lai-sheung rejected Leung's nomination with the attachment of Leung's Facebook posts, newspaper clippings and cited transcripts of his remarks at press conferences, and stated that although Leung had signed the forms, she did not believe that Leung "genuinely changed his previous stance for independence." [12] [13] [14]

Lawyers' joint statement

On 3 August, all 30 Legal Subsector members of the 1,200-strong Election Committee, which is responsible for choosing Chief Executive of Hong Kong including former Hong Kong Bar Association chairmen Edward Chan King-sang SC and Philip Dykes SC questioned whether returning officers had the power to investigate the “genuineness” of candidates’ declarations and accordingly disqualify their candidacies. In the statement, it wrote that "[the Section 40 of the Legislative Council 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." It also wrote that "arbitrary and unlawful exercise of powers by government officials ... are most damaging to the rule of law in Hong Kong." [14]

However, Secretary for Justice Rimsky Yuen said officers did have the power to consider some evidence, as they had done in the past. He did not specify any past cases. [14]

"First pro-independence rally"

On 5 August, the Hong Kong independence advocates who were banned from the election launched a rally which was dubbed “first pro-independence rally in Hong Kong”. The rally drew about 2500 people. The pro-independence activists vowed they would press on with their cause and campaign for wider public support. [15]

See also

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Hong Kong independence is a political movement that advocates Hong Kong to be established as an independent sovereign state. Hong Kong is one of two Special administrative regions of China (SAR) which enjoys a certain degree of autonomy as a part of the People's Republic of China, which is guaranteed under Article 2 of Hong Kong Basic Law as ratified under the Sino-British Joint Declaration. Since the transfer of the sovereignty of Hong Kong from the United Kingdom to the PRC in 1997, a growing number of Hongkongers have become concerned about Beijing's encroachment on the territory's freedoms and the failure of the Hong Kong government to deliver "genuine democracy".

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Chan Ho-tin Hong Kong politician

Andy Chan Ho-tin is a Hong Kong pro-independence political activist. He is a founding member and the convenor of the Hong Kong National Party, the first party to advocate for Hong Kong independence.

Baggio Leung Hong Kong activist and politician

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In the subsequently postponed 2020 Hong Kong Legislative Council election, 12 opposition candidates were disqualified by the returning officers from running in the election, including four incumbent legislators, Alvin Yeung, Kwok Ka-ki, Dennis Kwok and Kenneth Leung, as well as activists Joshua Wong, Ventus Lau, Gwyneth Ho and Cheng Kam-mun and incumbent District Councillors Lester Shum, Tiffany Yuen, Fergus Leung and Cheng Tat-hung.

2020 Hong Kong Legislative Council mass resignations

On 11 November 2020, 15 Hong Kong pro-democracy members of the Legislative Council announced their resignations in protest against the decision of the National People's Congress Standing Committee (NPCSC) which bars Legislative Council members from supporting Hong Kong independence, refusing to recognise Beijing's sovereignty over Hong Kong, seeking help from "foreign countries or foreign forces to interfere in the affairs of the region" or committing "other acts that endanger national security" that resulted in the disqualification of pro-democracy legislators Alvin Yeung, Dennis Kwok, Kwok Ka-ki and Kenneth Leung. In July 2020, the four had been barred from running in the subsequently postponed Legislative Council election originally scheduled for September 2020. The resignation en masse left the Legislative Council membership dwindled to 43 out of the total number of 70 seats, with virtually no opposition for the first time since the 1997 handover.

Public Offices (Candidacy and Taking Up Offices)(Miscellaneous Amendments) Ordinance 2021

The Public Offices Ordinance 2021 is an ordinance to amend the Oaths and Declarations Ordinance and other relating legislation which adds new requirements for the Chief Executive, Executive Council members, Legislative Council members and judges and other judicial officers, imposes oath-taking requirements on District Council members, and specifies requirements for candidates to swear to uphold the Basic Law and bear allegiance to the Hong Kong Special Administrative Region when assuming office or standing for election and also adds new grounds and mechanism for disqualification from holding the office or being nominated as a candidate. The ordinance was seen as another round of the Beijing authorities to bar the opposition from standing in elections or holding public offices and also raised concerns on the bill's vague parameters of the oath with such over-reaching scope would undermine Hong Kong's judicial independence.

References

  1. 1 2 "HKSAR Government responds to media enquiries regarding 2016 Legislative Council election". The Government of the Hong Kong Special Administrative Region. 30 July 2016.
  2. ↑ "EAC's request to sign Confirmation Form has legal basis". The Government of the Hong Kong Special Administrative Region. 19 July 2016.
  3. 1 2 Ng, Joyce; Ng, Kang-chung (14 July 2016). "'Accept Hong Kong is part of China or you can't run in Legco elections'". South China Morning Post.
  4. ↑ Un, Phoenix (22 July 2016). "Pan-dems reject poll declaration". The Standard.
  5. ↑ Cheng, Kris (26 July 2016). "Election officials email more pro-independence LegCo candidates asking about political stance". Hong Kong Free Press.
  6. ↑ Lee, Eddie; Fung, Owen (27 July 2016). "Setback to legal challenge against new Hong Kong election rule". South China Morning Post.
  7. ↑ Fung, Owen (28 July 2016). "Hong Kong localist gives in to election rule while others stick to their guns and are cleared to run". South China Morning Post.
  8. ↑ Tsang, Emily; Cheung, Elizabeth (30 July 2016). "Hong Kong National Party convenor disqualified from running in Legislative Council polls". South China Morning Post.
  9. ↑ Lam, Jeffie (31 July 2016). "'I was disqualified': second Hong Kong localist candidate barred from running in Legco elections". South China Morning Post.
  10. ↑ Ng, Joyce (1 August 2016). "Two radical Hong Kong localists await their fate while a third Legco candidate is banned". South China Morning Post.
  11. ↑ "梁天琦遭選管會 取消參選資格". Stand News. 2 August 2016.
  12. ↑ Ng, Joyce (2 August 2016). "Hong Kong Indigenous' Edward Leung disqualified from Legco elections". South China Morning Post.
  13. ↑ Cheng, Kris (2 August 2016). "Edward Leung has not genuinely switched from pro-independence stance, says election official". Hong Kong Free Press.
  14. 1 2 3 Ng, Joyce (3 August 2016). "Lawyers question power of returning officers to disqualify Hong Kong poll candidates". South China Morning Post.
  15. ↑ Ng, Joyce; Cheung, Tony; Fung, Owen (5 August 2016). "Hong Kong localists remain defiant at 'historic' rally". South China Morning Post.
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