Professor Simon Young of the University of Hong Kong challenges legality of an additional confirmation form required by the EAC and its authority to invalidate a candidate based on the form.
The government may have stirred up a hornet’s nest against itself as the anti-establishment camp is about to strike back against an attempt to drive out pro-independence Legco election candidates.
The Electoral Affairs Commission (EAC) has prescribed a new confirmation form requiring candidates to uphold three specific provisions under the Basic Law that highlights Beijing’s sovereignty over Hong Kong. Whether the new policy is legally justified soon became a centre of debate. All but few pan-democrats and localists have stated that they would not sign the form. Avery Ng Man-yuen (吳文遠), chairman of the League of Social Democrats, and Edward Leung Tin-kei (梁天琦) of Hong Kong Indigenous have filed separate judicial review applications in bid to nullify the decision.
Political controversies aside, Professor Simon Young Ngai-man (楊艾文) of the University of Hong Kong’s law faculty explains why the government’s argument of having such a confirmation form is unconvincing.
“According to the Legislative Council Ordinance, a Legco election candidate is required to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region in the nomination form [Chapter 542; Section 40; Subsection 1(b;i)]. But, it doesn’t single out certain articles, which is now the case for the confirmation form,” Professor Young says. “So the EAC has no authority to make such a decision based only on this provision.”
Professor Young argues that the government will likely cite the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, under which a Returning Officer “may require a candidate to furnish any other information that Officer considers appropriate to be satisfied a) that he or she is eligible to be nominated as a candidate for the functional constituency concerned; or b) as to the validity of the nomination.”
“That being said, I think citing this provision is problematic. As a person’s candidacy is valid as long as he or she has signed the nomination form and that the signatory is verified. The EAC should not require candidates to reconfirm the information concerned. So I don’t think this confirmation form is of any assistance to determine whether the nomination form is valid.”
Now with two judicial reviews within sight, the professor believes that the drama will still go down to how the government presents its justification when a candidate, presumably Edward Leung or Chan Ho-tin (陳浩天) of Hong Kong National Party, is disqualified.
“If the EAC doesn’t recognise a candidate’s nomination form, I think it will have other grounds to do so instead of basing [its decision] solely on the form itself. The government’s argument would be that, somehow, by the candidate’s conduct, drawing on his or her past discourses, it is demonstrated that he or she will not uphold the Basic Law,” he elaborates.