Why some Legco candidates are refusing to sign a new declaration

July 19, 2016 15:57
The National Party's Andy Chan (L) was among the Legco election candidates who refused to sign a new declaration form along with the nomination papers. Photo: HKEJ

With the nomination period opening for the Sept. 4 Legislative Council polls, the Leung Chun-ying administration has stirred a controversy by putting in place a new rule on election candidates. 

The Electoral Affairs Commission (EAC) announced last Thursday that all Legco candidates will have to sign a declaration of acceptance that Hong Kong is an inalienable part of China.

The hidden subtext: Acknowledge that China is the master and that Beijing has the right to determine Hong Kong's political future.

Not surprisingly, the rule has angered youth political groups and localist organizations that had sought to join the polls on a platform of self-determination, or even independence, for Hong Kong.

As the EAC warned that anyone making a false declaration on the nomination form can face criminal prosecution, there are worries that authorities are trying to keep out localists and radical activists from the election.

Meanwhile, questions are being raised as to the legality of the government's new rule.

Five days after EAC's announcement, the government is yet to provide an explanation on the legal basis for the requirement on what is essentially a loyalty pledge to China.

Amid this situation, many candidates from the opposition camp have refused to sign the declaration as they submitted nomination forms to the electoral office in the past two days.

The question now is this: will the government disqualify such candidates from the election?

According to Article 26 of the Basic Law, "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."

The government has no right to reject any permanent Hong Kong resident from participating in an election if he or she complies with relevant laws and regulations.

But now the government has introduced a new rule in an apparent bid to identify and possibly weed out candidates who have reservations over China's rule on Hong Kong.

According to the EAC announcement, candidates should declare their support for Article 1, Article 12 and Article 159(4) of the Basic Law.

Article 1 underlines that Hong Kong is part of China, while Article 12 says that Hong Kong SAR is just a local administrative region of China. As for the other Article, it says that no one can contravene the established basic policies of China regarding Hong Kong.

By requiring candidates to sign a declaration, it is apparent that authorities are targeting new political groups like Youngspiration and Demasisto as well as localist organizations such as Hong Kong Indigenous. 

The groups have come under the lens due to their perceived anti-Beijing stance and advocacy of self-determination or independence for Hong Kong.  

While the government's concern is understandable, it is however absurd that a political loyalty test is being imposed on the poll candidates.

The Basic Law is the foundation of Hong Kong's rule under the "one country two systems". The constitution document cannot be split or interpreted based on the government's political needs.

Of course, some can argue that the interpretation of the Basic Law ultimately lies in the hands of China's National People's Congress, the nation's parliament.

However, the government should have at least gone through proper legislative procedure for such loyalty pledge, rather than introduce it suddenly without any public consultation.

As Beijing is aiming to implement a loyalty check prior to the Legco election, it amounts to political censorship and a violation of the rights of Hong Kong people.

Refusing to sign the new declaration, several opposition candidates have said that they will seek judicial reviews if they are disqualified.

Then there is also the matter of violation of procedural justice, as a Youngspiration candidate, Yau Wai-ching, pointed out.

Yau filed nomination papers Monday for a seat in Kowloon West, but has refused to sign the new declaration.   

Demosisto chairman Nathan Law Kwun-chung was among others who submitted election applications without signing the new pledge.

Law said he won't sign the declaration as he considers the new rule to be unlawful.

"If the [EAC] bars any candidate from running because he or she did not sign the form, I will consider filing a judicial review," media reports quoted him as saying.

Andy Chan Ho-tin, convener of the independence-leaning Hong Kong National Party, was another prominent candidate who refused to sign the declaration.

The government won't succeed in its efforts to prevent independence advocates from joining the election, he said.

With several candidates from opposition and independent groups refusing to sign, pan-democrats are planning to meet EAC chairman Barnabas Fung and demand that the new rule be scrapped.

There is good reason why the opposition camp should be wary of the new declaration.

If the government has its way on this, it could potentially pave the way for re-launch of legislation process on the controversial Article 23 of the Basic Law, which says that Hong Kong should enact laws "to prohibit any act of treason, secession, sedition, subversion" against the central government.

Given the failed promises on political reforms and the track record of the governments in Hong Kong and Beijing, the opposition camp is right in resisting the new declaration.

What remains to be seen now is whether the government will enforce the new rule strictly and cancel all the nominations of candidates who didn't sign the pledge, or accept the forms by acknowledging the strong feelings of the locals.

It marks another test for the Leung regime as to whether it will stand up for Hong Kong people's rights or choose to side with Beijing.

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EJ Insight writer