28 October 2016
Government officials like Justice Secretary Rimsky Yuen appear to be just following orders from Beijing to block certain radical activists from running in the Legco election. Photos: Xinhua, HKEJ
Government officials like Justice Secretary Rimsky Yuen appear to be just following orders from Beijing to block certain radical activists from running in the Legco election. Photos: Xinhua, HKEJ

Beijing may preempt court ruling on election petitions

The rule of law, one of Hong Kong’s core values, is struggling to survive in our highly politicized society.

The government, through the Electoral Affairs Commission (EAC), has used the Basic Law to trample upon its very spirit by barring pro-independence activist Edward Leung Tin-kei from running in the Legislative Council election.

Leung, a member of localist group Hong Kong Indigenous who ran but lost in the February by-election, was disqualified this time for advocating Hong Kong’s independence from China, as revealed in his social media pronouncements, according to the returning officer.

That despite the fact that he had signed a confirmation form upholding the Basic Law and accepting Beijing’s rule in the territory.

It is quite clear that government officials, including Justice Secretary Rimsky Yuen Kwok-keung and the returning officers, are just following orders from the north to block certain radical activists from running in the September election.

While some candidates are expected to launch an election petition to seek a court ruling on the disqualification of certain candidates due to their political views, several pro-Beijing legal experts are sending signals that the National People’s Congress could preempt the Hong Kong court’s decision by interpreting the existing articles related to the city’s election, thereby providing a cloak of legality to the EAC actions.

If that happens, it will only prove that the central authorities are meddling in the city’s electoral affairs in utter disregard of the provisions of the Basic Law on Hong Kong’s autonomy.

It will only make clear that Beijing is using the SAR government to implement its brand of political censorship to neutralize individuals and groups who it thinks will threaten its rule in the territory.

And it will also show that Beijing has no compunction to disregard Hong Kong’s legal system to enforce its will in the city.

On Wednesday a group of lawyers and senior counsels issued a joint statement voicing out their unhappiness over the government’s decision to bar certain candidates in the Legco election.

The lawyers reminded the government of Article 26 of the Basic Law, which states that “permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law”.

They also said the Legislative Council Ordinance has no rules authorizing returning officers to determine the candidate’s sincerity in embracing the Basic Law.

The lawyers accused the government of bypassing all legal processes and deciding on the qualification of candidates through subjective and arbitrary means.

“Such investigations and decisions are not only illegal, but also imply that returning officers are implementing political censorship and filtering without sound legal foundation,” the statement said.

But the government may feel it has no need to answer the lawyers’ allegations.

It may just choose to wait for Leung and the other disqualified candidates to launch election petitions to declare the results of the September election invalid, paving the way for a new round of election if the court rules in favor of the affected candidates.

Leung of Hong Kong Indigenous said he is very confident that his election petition will succeed based on the existing interpretation of the law.

He cited media reports as saying that the returning officer rejected his candidacy because of his failure to meet the requirement listed in Section 40 of the Legislative Council Ordinance, e.g., the requirements that must be complied with by persons nominated as candidates.

According to this provision, “the nomination form includes or is accompanied by (i) a declaration to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.

Legal expert Eric Cheung said the returning officer’s action may be proven to be illegal as Leung has signed the form and committed not to promote Hong Kong independence.

That may be the reason why Leung is confident about his planned election petition.

Still, the justice secretary insisted that the election officer is duty-bound to determine whether candidates have declared their support for the Basic Law before deciding if their nominations should be validated.

When asked if it was the first time election officers have carried out “political screening” for the Legco election, Yuen said the officers were entitled to ask candidates for information.

In effect, the government is admitting that it is putting political censorship ahead of legal considerations.

Yuen cited Article 1 of the Basic Law (“The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China”) in defending the government’s decision to ban certain candidates.

However, it should be noted that that provision of the Basic Law is intended to limit the power of the SAR government, not the rights of Hong Kong people.

By citing Article 1 of the Basic Law, the government is treading on very thin legal ice.

If that interpretation of the law is upheld, then what would prevent the government from using it again and again to carry out political censorship? 

The Justice Department is a key player in Hong Kong’s legal system, offering legal advice to the government departments and bureaus and serving as government prosecutor.

But now the department is playing a new role, that of adopting the Chinese style of legal system, which is to use the law to serve the government’s political goals.

So what will happen now to the rule of law?

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EJ Insight writer

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