9 ?! c/ ~6 s7 _" g7 E& Htvb now,tvbnow,bttvb - Q+ t. t; N* V: y; ?1 b公仔箱論壇TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。! n, C! M. N5 ]" e1 v 法政匯思就選舉管理委員會就香港獨立事件的近期舉動之「常見問題」（FAQs）TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。* b f, R7 E+ O. U2 }# m, |) t
tvb now,tvbnow,bttvb, v9 s7 u" A! [: Q# z 【A. 前言】公仔箱論壇5 g/ u5 N' M1 D
$ n( {: Z0 p' p8 C自從本屆立法會於 2016 年 9 月 4 日選舉（「選舉」）投票日的提名期開始，選舉管理委員會（「選管會」）就有關於香港獨立事件的一系列行為引起了廣泛的辯論，其中也不乏眾多的法律議題。法政匯思就以下常見的法律問題準備了答案，闡明我們就背景事實的理解和我們的立場，以對這些法律議題作出澄清。 . j* a. `% j: t% Z$ n基於選舉指引，我們盡量避免直指相關候選人的名字或選區/組別。我們認為這樣並不影響我們在這些常見問題下所作出的分析。 ^( K7 i: a# t( D1 M) Z) C0 a5 qTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。3 v% m) I4 R" w# S
* * * / P3 m( e4 E' z6 a% i ! b( C) `& [+ O( ~ y* x公仔箱論壇【B. 發生了什麼事？】公仔箱論壇. F/ z1 G& L% Q' ^, |- s ^; n$ A
& G3 P: N, i' S0 f$ Y# l公仔箱論壇Q1：什麼是選舉委員會要求選舉候選人簽署的「確認書」？tvb now,tvbnow,bttvb6 X- a7 s) C9 P, K' S$ G
2016 年 7 月 14 日，選委會通過一份新聞公報表示，它將要求所有候選人簽署一份聲明確認書（「新確認書」），以作為選舉候選人提名的一部分。該新確認書包括以下確認內容： 8 [9 ~5 ]4 S5 p& s% S! |' ]3 j& ~0 R 8 c l$ r2 r" p% I- 候選人擁護《基本法》，並宣誓效忠香港特別行政區；TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。/ r" s% ]: {' @7 ^. C, ^5 D" m
- 「擁護」《基本法》包括擁護以下條文：（a） 第 1 條：香港特別行政區是中華人民共和國不可分離的部分； （b） 第 12 條：香港特別行政區是中華人民共和國的一個享有高度自治權的地方行政區域，直轄於中央人民政府；（c） 第 159（4）條： 《基本法》若有任何修改，均不得與中華人民共和國對香港既定的基本方針政策相牴觸；及 / b3 k4 a, o, b0 G- 若候選人作出虛假聲明，則干犯刑事罪行。4 Y v# L5 v% S" p: R( J% F; m
5 d! y/ f' ^8 R* n" L- W3 E9 G/ O Q2：簽署新確認書是否前一項法律要求？, B1 e! p7 i. m; N: l
不是。TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。4 a% n8 K: s1 O3 o
所有候選人都已必須簽署提名表格中已經包含該候選人會擁護《基本法》和保證效忠香港特別行政區的聲明。選管會亦已經明確表示，新確認書並不是一項法律要求，但選舉主任將用作考慮選舉候選人的提名的信息。 , x( _- H. ^4 r, p9 K" W公仔箱論壇 2 u& B+ M# f* ~4 [. yTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。Q3： 是否所有候選人都簽署了新確認書？ 5 d& l) s- Z! q2 q6 O& e% O: I3 ?不是。 - l" z( F! x4 B8 l公仔箱論壇 2 c7 C- d% T4 h3 h I( `Q4： 是否所有沒有簽署新確認書的選舉候選人都被取消參選資格？ ; j+ G& K6 d: c; M% j不是。 $ s+ r/ D. J0 s5 N8 V" ?. J共有四位選舉候選人因沒有簽署新確認書而被取消參選資格。其中一名候選人並無簽署新確認書或提名表格內法律要求之聲明（見上述 Q2），而其餘三位元有簽署提名表格內之聲明但沒有簽署新確認書的候選人都是因為他們曾經公開表明支持香港獨立而被取消參選資格。TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。; ?9 R" o a( H$ G% V
儘管如此，大量其他有簽署提名表格內之聲明但無簽署新確認書的選舉候選人都獲確認為符合參選資格。. U1 z. b4 U/ v: b, g9 Y3 Z% N
os.tvboxnow.com# v$ C3 v5 @- F1 }+ ]+ y0 O Q5： 是否所有簽署了新確認書的選舉候選人都獲確認參選資格？os.tvboxnow.com Q; J) q2 T1 e8 |# D9 H
不是。* j F2 v' u& }8 D- ~
兩位已簽署新確認書的選舉候選人最後仍被取消參選資格。兩人都因過去曾表示支持香港獨立而被取消資格。基本來說，他們在新確認書的簽署 都不獲選舉主任信納。在其中一個個案，選舉主任更拒絕信納該候選人早前回覆選舉主任書面查詢時對香港獨立作否定之表示。% i* X" V5 n& A7 ~
os.tvboxnow.com; }0 O/ @- w! \* d+ z" q; U! x Q6： 是否所有在過往曾表示支持香港獨立的選舉候選人都被取消參選資格？ # U4 `$ F- \: z6 l- O不是。 . V2 k& ]3 P" [/ s$ ltvb now,tvbnow,bttvb有數名人士過往曾明確表示支持香港獨立或至少曾提倡香港自決並加入香港獨立作為選項，但都成功被獲確認為合資格選舉候選人。tvb now,tvbnow,bttvb4 Q: T" }2 z! `9 k. f7 Q. W) D
The Progressive Lawyers Group's FAQs in relation to the Electoral Affairs Commission’s recent actions on the issue of Hong Kong independence5 a, p, m1 `( g/ Z, \" e
5 A. [( q0 o- I8 g6 K2 q A. Introduction# l1 E' l. K: |9 a1 l1 `
Since the nomination period opened in respect of the Legislative Council (“LegCo”) elections to be held on 4 September 2016 (“the Election”), there has been much public debate surrounding the Electoral Affairs Commission’s (“EAC”) actions in relation to Hong Kong independence. This debate has thrown up a myriad of legal issues. To provide greater clarity on the legal questions, the Progressive Lawyers Group have prepared the following FAQs, which set out our understanding of the background, as well as our position on the issues at handTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。0 W# b% s$ g& j5 N7 v' }& p
In light of election guidelines regarding references to candidates, we have refrained from referring to names of specific candidates or constituencies. Our view is that this should not have any impact on the analysis set out in these FAQs.; j v8 [+ C- y, ?
tvb now,tvbnow,bttvb& D0 e6 f7 |+ v9 e7 f9 C B. What happened?( C1 K6 A$ X- M& ^/ S d0 H Q1: What is this“confirmation form” that the EAC has asked Election candidates to sign?1 E6 M+ z6 l% Y [. i6 I
On 14 July 2016, the EAC issued a press statement, saying that as part of the nomination process for candidates in the Election, it will ask all Election candidates to sign a confirmation form (“New Confirmation Form”). The New Confirmation Form contains confirmations that: 3 D, o: f( A' {3 v' |- H0 \os.tvboxnow.com公仔箱論壇2 w, G X& H' D
- the candidate upholds the Basic Law and pledges allegiance to the Hong Kong Special Administrative Region;公仔箱論壇4 x7 P" h: r4 b K; |
-“upholding” the Basic Law includes upholding the following provisions of the Basic Law: (a) Article 1: The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China; (b) Article 12: The Hong Kong Special Administrative Region shall be a local administrative region of the People's Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People's Government; (c) Article 159(4): No amendment to this Law shall contravene the established basic policies of the People's Republic of China regarding Hong Kong; andTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。% {0 Y+ `1 m% ]) K
- it is a criminal offence if the candidate makes a false declaration.TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。 F& l" j$ i9 `# }* w
$ H3 ~9 w& P; ~8 m2 gtvb now,tvbnow,bttvbQ2: Is the signing of the New Confirmation Form a legal requirement? % n5 f i$ `$ x' ^$ U公仔箱論壇No. 8 \3 u# B; j7 Y% H( j; P( x( R* pThe nomination form that all Election candidates are required to sign already contains a declaration that the candidate would uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region. The EAC itself had made clear that the New Confirmation Form is not a legal requirement, but is used instead for informational purposes by the returning officers in considering the nominations of Election candidates. / o; Y8 J* g" P7 R公仔箱論壇. J8 ]: S r; l2 a" m Q3: Did all Election candidates sign the New Confirmation Form?tvb now,tvbnow,bttvb" Y' O! U ^/ e, C) F) W0 O
No. ; K- `/ M: g9 ^tvb now,tvbnow,bttvb 3 f; s# n9 u+ E公仔箱論壇Q4: Did all Election candidates who did not sign the New Confirmation Form end up having their candidacies disqualified? ' _* n/ R1 [% a* o2 b; K8 fTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。No.; z/ H& F3 H: k/ t4 Q, [' G; @
Four Election candidates who did not sign the New Confirmation Form did indeed get disqualified. One candidate signed neither the New Confirmation Form nor the legally mandated declaration (see Q2 above) in the nomination form. The other three, who signed the declaration but not the New Confirmation Form, were all disqualified on the ground that they had, in the past, publicly stated support for Hong Kong independence.2 {# f4 T) f$ G& {4 D$ ^! _
Nonetheless, a large number of other Election candidates who signed the declaration but not the New Confirmation Form were confirmed as being eligible to run./ N6 P- g! a. H( d
os.tvboxnow.com7 r6 J+ z( I& b Q5: Did all Election candidates who signed the New Confirmation Form end up having their candidacies confirmed?& l3 F+ [$ w" `, @" [6 i* a( r
No. * w; I2 g6 r) X: }Two Election candidates who signed the New Confirmation Form still ended up being disqualified as candidates. Both were disqualified because they had, in the past, expressed support for Hong Kong independence. Basically, their signatures on the New Confirmation Form were disbelieved by the returning officer. In one case, the candidate had (in response to a written question from the returning officer) even disavowed Hong Kong independence; however, this was also disbelieved by the returning officer.tvb now,tvbnow,bttvb7 p2 R+ k, X8 u, I r4 N3 b. x
% E- _3 s6 {0 v Q6: Did all Election candidates who had previously expressed support for Hong Kong independence end up having their candidacies disqualified?TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。+ n0 G P% K; t/ M$ Q4 }. ]
No.' E( O1 J/ n1 f7 x4 n% \9 \+ c
A number of individuals who had expressly stated their support for Hong Kong independence, or at least advocated self-determination for Hong Kong with independence as an option, have been confirmed as Election candidates. 2 Z" K0 g# D- x7 M: IQ7(a): So, even leaving aside any legal analysis, the returning officers’ treatment of the New Confirmation Form and individual Election candidates’ views on Hong Kong independence has been riddled with confusion and inconsistencies? 3 o, ]/ S K7 h- [; oTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。Yes.os.tvboxnow.com6 L8 I2 e+ d. W i
. j4 C" K& V+ C" _% {+ P3 Qos.tvboxnow.comQ7(b): Why? % }1 ~# O3 c% k( \% J+ hConspiracy theories abound. We need not indulge in such theories. We need only point out that the EAC and the returning officers are best placed to answer this question. ( X; t: O9 _! {0 gos.tvboxnow.com& c6 z; ]2 B8 Y+ X: E/ C% m C. Legal issues – constitutional framework and comparable international contexttvb now,tvbnow,bttvb& K$ u+ W6 x8 I4 ^
公仔箱論壇& w- c, G0 ~8 E7 c* Y/ l Q8: What are the fundamental rights at stake in the facts as outlined in Q1 to Q7 above? 1 x3 c1 Y# k0 AArticle 26 of the Basic Law states that “[p]ermanent residents of the Hong Kong Special Administrative Region shall have … the right to stand for election in accordance with law.” % I: |2 u# i$ M* ^" i, N6 B公仔箱論壇Article 27 of the Basic Law states that “Hong Kong residents shall have freedom of speech”.os.tvboxnow.com/ O, Q3 {. I. S, f' A" E
The right to stand for election and right to freedom of speech are further protected through Article 16 and 21 of the Hong Kong Bill of Rights (which correspond with Articles 19 and 25 of the International Covenant on Civil and Political Rights, which by virtue of Article 39 of the Basic Law is to be implemented through Hong Kong laws). . C: b, e* S* a3 m* ^% p5 [TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。 1 Q* p' J# U' r! f0 N* G公仔箱論壇Q9: But surely rights are not absolute and can be subject to lawful limitations?/ ]4 D2 E( x5 P2 l& X
Yes. However, the Hong Kong Court of Final Appeal has repeatedly made it very clear that: " K3 F6 ?% i7 b* H- fundamental rights should be interpreted generously so that Hong Kong residents can enjoy them in full measure; and % T$ n5 p- u0 S4 A. W3 kos.tvboxnow.com- any restrictions on fundamental rights should be interpreted narrowly, and the burden is on the Government to justify such restrictions. ; @9 n+ ^ T1 I+ r. }& W 8 R# h( S1 w2 C* Q/ g( a" x( NTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。Q10: But surely it is justifiable to restrict fundamental rights if a person is advocating Hong Kong independence, given that this is fundamentally inconsistent with the structure of the Basic Law (which is based on Hong Kong being an inalienable part of China)?3 S$ q- G8 F& F# F& E. G+ v
We disagree, because:- W, x* ]! z4 O7 l
Whilst the text and structure of the Basic Law is based on Hong Kong being an inalienable part of China, this fact should not be read in isolation. It must be read together with the fundamental rights that have been guaranteed to Hong Kong residents. Indeed, if one looks at the Sino- British Joint Declaration, the resumption of China’s sovereignty over cannot be separated out and given higher status than the fundamental rights to which Hong Kong residents are entitled. They both form part of the “basic policies” of China regarding Hong Kong as set out in the Joint Declaration.os.tvboxnow.com" Y4 B; k( C h6 e
In other places (e.g. United States, United Kingdom, Canada), there have been numerous candidates or even members of legislatures who have to swear allegiance to their country and/or to upholding its constitution. However, in all of these places, candidates openly seeking independence for their regions have in the past or currently not been prevented from standingos.tvboxnow.com& \8 p9 O4 H8 |& o' A
for elections or even becoming members of legislatures, provided they make the necessary declarations and/or oaths of allegiance.& A% Z0 V$ Q& n( W
) m% a+ P5 z" \7 rQ11: But the examples in Q10 above relate to national legislatures. Hong Kong is merely a region under the Chinese nation. Surely these examples are not relevant?TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。6 P% [$ w/ z' J8 i4 `/ Y4 v! f
Incorrect.os.tvboxnow.com$ \3 q; b6 {& k' U C4 s+ E- f! a
In all three examples in Q10 above, independence advocates also sat or currently sit in regional legislatures (e.g. the Scottish Parliament or the National Assembly of Quebec). The United Kingdom in particular is not a federal state (unlike the United States or Canada) but instead has devolved legislatures (e.g. the Scottish Parliament). As such, we disagree with the argument that somehow Hong Kong's “regional” status would lessen the measure of rights being enjoyed by its residents. 0 P5 M. ^9 ~0 M# y0 W" Z0 d& Y公仔箱論壇! V7 o1 b6 Q- w1 N6 N: D D. Legal issues – statutory framework ! \3 h7 ~ Q) Y% \4 A, ^7 P * I7 S' D. |; u+ U3 ]% K公仔箱論壇Q12: What provision sets out the eligibility criteria for Election candidates? 4 @# r# m1 J% RSection 37 of the Legislative Council Ordinance (“LCO”) sets out the criteria for being eligible to be nominated as a candidate. The criteria relate to matters such as age, residency, and (for functional constituencies) sector-related requirements.tvb now,tvbnow,bttvb0 A. O( M" e# \' u" c: N
7 W, J/ c. U# u! N9 etvb now,tvbnow,bttvbQ13: When is a person disqualified from being nominated as an Election candidate?TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。7 X, n; E6 C$ X1 u
Section 39 of the LCO sets out the circumstances where a person would be disqualified from being nominated as an Election candidate.公仔箱論壇; w n0 O) u4 z* B
They include being a judge; holding foreign government positions; being bankrupt; being declared mentally ill; etc.os.tvboxnow.com. d: O% G$ S. X! w
Importantly, they also include being convicted of treason at any time; or being convicted, within five years before the election, of an offence with an imprisonment sentence of more than three months, or of bribery, or of election-related offences.os.tvboxnow.com. c' z6 y/ @( i
2 M( A$ P* n1 y! z" m# ~' N, v. qQ14: What requirements does a person have to comply with to become a validly nominated Election candidate?os.tvboxnow.com5 n/ [# X; @" N- v' @- }$ B
Section 40 of the LCO states that a person is not validly nominated unless he places a deposit with the EAC, as well as making several declarations and oaths. 6 v$ Q# R6 p7 _6 ?; ~. ]os.tvboxnow.comFor present purposes, the relevant declaration (contained in the nomination form provided by the EAC for Election candidates) is one “to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region” (see section 40(1)(b)(i) of the LCO). & a0 Q& K1 F( WTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。In addition, sections 10 and 11 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (“Regulation”) sets out various additional administrative requirements for potential candidates, such as declarations on eligibility to stand and subscribers in support of his nomination. + l2 U# L& _6 e' ^+ X' {TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。 - f9 L* ~- e# XTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。Q15: Who decides whether a person is validly nominated as an Election candidate?公仔箱論壇/ l: w+ k' A! S; W, Q! ]
According to section 42A of the LCO and section 16(1) of the Regulation, it is for a returning officer to decide. The returning officer must do so “as soon as practicable” after receiving a nomination form. 9 O4 t' Z; k1 y! `& Y公仔箱論壇; \# ~: ^! z s! ^ Q16: If all requirements under Q12 to Q14 above are complied with, what are the circumstances where a returning officer can still decide that a person is not a valid Election candidate?0 B- u6 I+ e: t% w$ e" c& j
The circumstances are as follows: 2 }1 ]% F' O# R2 V5 D! |TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。Section 16(2) of the Regulation allows a returning officer to invalidate a candidacy if the candidate withdraws, or if the returning officer decides that a nomination form is invalid. However, this relates only to defects on the nomination form itself, because section 18 of the Regulation refers to an opportunity being given to the candidate to rectify anything on the form which affects its validity. In any event, in the present case of the Election, the returning officers did not rely on section 16(2) of the Regulation in disqualifying various candidates. Instead, they relied upon their lack of belief in the candidates’ truthfulness, and this allegedly meant that section 40(1)(b)(i) under Q14 above was not satisfied. 2 B8 A1 {) y: g& Wtvb now,tvbnow,bttvbSection 16(3) states that a returning officer may decide a nomination is invalid “if and only if” a number of conditions are satisfied. They include failure to pay election deposit; lack of requisite signatures or subscribers on the nomination form; the candidate is dead; an individual nominating for more than one constituency; and where a person has not satisfied the LCO requirements (which would be the requirements under Q12 to Q14 above). " _6 c; O; L. J3 H8 _os.tvboxnow.com公仔箱論壇3 c* V' e' z1 @( S) H# i Q17: Does a returning officer have the power to ask further questions to seek further information from an Election candidate for the purpose of determining the validity of his candidacy?TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。6 D' p+ g0 n/ t, {2 G* K
Section 10(10) of the Regulation states that 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 … ; or (b) as to the validity of the nomination.”- s! L( \$ h% l3 ~) \
At first glance, it may be argued that the returning officer have the power to ask anything or seek any information from candidates. 5 \3 A- A- u3 D l6 C, gHowever, in our view, this argument is incorrect. It is implied within section 10(10) that the returning officer is only entitled to ask for information if that information is relevant to a specific ground upon which the returning officer may disqualify a candidate. For example, the returning officer is not entitled to ask for information about a candidate’s religious or political beliefs, because such beliefs are not a valid ground for the returning officer to disqualify a candidate. $ _0 g; Q3 h! W公仔箱論壇In this regard, there is Hong Kong case law suggesting that even if someone appears to be generally empowered by legislation to ask for further information, such exercise of power must be reasonably connected to a particular ground upon which it has the power to make a particular decision. Thus, in view of matters referred to under Q12 to Q16 above, we consider that a returning officer does not have the power to ask questions about a candidate's past attitudes towards Hong Kong independence, because this does not go to any of the grounds on which a person can be held by the returning officer to be ineligible or invalid as an Election candidate. - u2 V P3 K7 r+ \* rTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。: N0 b) N$ A% K+ G) h; \ Q18: Does a returning officer have the power to make judgments as to the truthfulness or otherwise of a declaration made in the nomination process? ; \4 e1 B" e1 Z! ~. y# zTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。No. : G, o$ Z+ V1 N& ?TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。Overseas case law makes it clear that the role of a returning officer is an administrative one, being merely to ensure that any document presented to them is, on its face, in order. It is not open to the returning officer to conduct wide-ranging inquiries and make qualitative judgments. If a candidate is alleged to have made a false declaration, that is a criminal offence and should be ultimately be decided by the courts.公仔箱論壇& s9 i2 G- V* p' O
os.tvboxnow.com$ X8 X+ m( a: s: e' O+ t Q19: But what if you are wrong and a returning officer does have the power to make the judgments in Q18 above? Does that mean, in the present case, the returning officers did have the power to disbelieve the Election candidates’ declaration under section 40(1)(b)(i) of the LCO and hold that the candidates' nominations were invalid? * n) P* o Y; K/ a, f" ltvb now,tvbnow,bttvbNo.; f8 I: S4 L2 i* R. @
Based on our answers to Q8 to Q11 above, and also Articles 26 and 27 of the Basic Law (as well as the corresponding sections in the Hong Kong Bill of Rights), we believe that a returning officer is not entitled to conclude that a person would necessarily fail to uphold the Basic Law or cannot pledge allegiance to Hong Kong merely because he had spoken and argued in favour of Hong Kong independence. 6 k3 ~. w7 e U; H" X$ X( r公仔箱論壇This conclusion is further supported by the fact that, as noted under Q13 above, section 39 of the LCO sets out the specific circumstances where a person would be disqualified from being nominated as an Election candidate. For example, if a person is convicted of treason at any time or sentenced to more than three months’ imprisonment (which would likely be the sentence for someone convicted of sedition, riot, etc) within the last five years, he would be disqualified. Thus, there is already a specific prescribed mechanism (which requires criminal prosecution and conviction) for disqualifying candidates who have committed acts against the state. But merely because a candidate had spoken and argued in favour of Hong Kong independence does not fall under the circumstances described under Section 39.os.tvboxnow.com, Z6 E) i# v/ @7 W2 Q4 V# G
公仔箱論壇5 C% d+ d- H8 H* T Q20: But what if you are wrong even on this and returning officers did have the power to act as described under Q4 to Q5 above? $ c% }( b; D$ u6 }$ l) vIf that is the case, that would be most troubling for the future of fundamental rights and rule of law in Hong Kong. If those in power can today ban individuals from standing for election because they spoke or argued in favour of Hong Kong independence, in future all manner of speech which are alleged to be in breach of a fundamental premise of the Basic Law could be deemed as evidence of failure to uphold the Basic Law. For example: / B6 z) ^8 v/ f/ N" S- fOne country, two systems is "fundamental”, so those speaking in favour ‘one country, one system’ could be disqualified as candidates?tvb now,tvbnow,bttvb- s# a0 ]- S, a; m* M" C3 k6 `% @
Judicial independence is “fundamental”, so those who make abusive verbal attacks on judges’ acts could be disqualified as candidates? 1 I4 f6 L9 W0 l$ W, ?2 C" [' J. Vos.tvboxnow.comNational security is “fundamental”, so those speaking against the introduction of legislation prescribed by Article 23 of the Basic Law could be disqualified as candidates?# V. N6 s7 P. H8 T8 R2 m8 U6 ]
What is even more troubling is that this could well extend beyond LegCo elections. For example, judges must also swear to uphold the Basic Law and pledge allegiance to Hong Kong (see Article 104 of the Basic Law). What if judges make rulings which are in accordance with the law, but which seek to protect the rights of Hong Kong independence activists? Can judges then also be said to have acted contrary to Articles 1 and 12 of the Basic Law (referred to under Q1 above)? Would this mean that judges have also failed to uphold the Basic Law and therefore render their oaths of office false? The possibilities for the arbitrary exercise of power, to the detriment of the rule of law and Hong Kong residents’ fundamental rights, are potentially unlimited once the floodgates are opened by the circumstances such as those under Q1 to Q7 above. " P( a/ V, }- u" Z" a% Utvb now,tvbnow,bttvb - j, n( }5 K z+ f% D: `os.tvboxnow.comE. What comes nextTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。- s3 c$ h) }7 J5 j7 Q* ^
9 }/ P- n" X4 D& x- y$ pQ21: What happens next for those candidates who have ultimately been barred from running in the Election in circumstances as set out under Q1 to Q7 above? ( p6 J" D0 g1 q2 `, Mtvb now,tvbnow,bttvbSeveral judicial review proceedings are already in progress. Some of the barred Election candidates have also said that they will challenge their disqualifications by way of election petition. It would not be appropriate at this stage for us to comment on these court proceedings, except to say that they will be amongst the most important court proceedings in post-1997 Hong Kong history. ' }, @# F5 i) T公仔箱論壇! b# M2 g4 ^3 \7 K( p7 ]5 I. J+ o Q22: Might the Standing Committee of the National People's Congress (“SCNPC”) seek to intervene in the matters described under Q1 to Q7 above by way of an interpretation of the Basic Law (under Article 158 of the Basic Law)?公仔箱論壇0 c( J( J" ]# Q* I
Given the nature of the matters at hand, and especially the fact that the disqualification powers exercised by the returning officers were under local legislation (i.e. the LCO and the Regulation), we do not see any legal basis for the SCNPC to intervene, because the SCNPC's power is to interpret the Basic Law itself and not to interpret local legislation.公仔箱論壇" H/ I0 R* n3 a7 m8 u E
TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。2 m, [* Q6 C E
But as we have seen in the past, the SCNPC has been willing to take dubious positions on the Basic Law (and related legal issues and processes) in order to achieve certain political ends. We can only hope that the SCNPC will in its wisdom decide not to intervene and let the matter be determined by the Hong Kong courts. ! D+ `7 V l+ \9 k R# E% Ftvb now,tvbnow,bttvbos.tvboxnow.com: X) R, ~$ r1 ?" y k7 E, a
Progressive Lawyers Group 6 @3 Y4 j$ ]9 J' m# z8 }3 m/ H4 kTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。8 August 2016
