(2) 根據選管會,「擁護《基本法》」是指擁護《基本法》包括以下的規定：（a）第一條，香港特別行政區是中華人民共和國不可分離的部分。（b）第十二條，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）第一百五十九（四）條, 本法的任何修改，均不得同中華人民共和國對香港既定的基本方針政策相抵觸。
The Progressive Lawyers Group’s Statement on the Press Statement by the Electoral Affairs Commission on 14 July 2016
1. The Progressive Lawyers Group (“PLG”) notes that the Electoral Affairs Commission (“EAC”) issued a Press Statement on 14 July 2016 (“Press Statement”). In short:
(1) The EAC requires candidates running for the 2016 Legislative Council Election to sign a separate declaration (“Declaration”), in addition to the nomination form for candidacy, that they will uphold (擁護) the Basic Law and pledge allegiance to (效忠) the HKSAR;
(2) According to the EAC, “upholding the Basic Law” means upholding the Basic Law including the following provisions: (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.
(3) There is also a reference in the Declaration to commission of an offence if the candidate makes a false declaration in an election related document.
2. It appears from the Press Statement that the EAC takes the view that they possess the power to declare a nomination invalid if they believe that the candidate was not “bona fide” (meaning “good faith”) in signing the Declaration.
3. The PLG is concerned about various aspects of the Press Statement.
4. All permanent residents of the Hong Kong Special Administrative Region have the fundamental right to stand for election in accordance with law under Articles 26 and 27 of the Basic Law, as well as the fundamental right to free speech. Past Court rulings have made it clear that any purported restriction on fundamental rights must be interpreted narrowly.
5. We note that section 40 of the Legislative Council Ordinance (“LCO”) states that a person is not validly nominated as a candidate in a Legislative Council election, unless the nomination form includes or is accompanied by a “declaration to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”. However, in light of the interpretive principle as noted above, we consider that what constitutes a failure to “uphold the Basic Law” or show “allegiance to the Hong Kong Special Administrative Region” must be construed narrowly, having regard to fundamental rights guaranteed by the Basic Law (in particular Articles 26 and 27 in the present context).
6. The PLG does not at this stage wish to create undue alarm in relation to the Declaration until there is clarity as regards how it will be enforced by the EAC. However, we do note the following as potential areas of future concern:
(1) In 2014, the State Council issued a White Paper in relation to the operation of One Country, Two Systems in Hong Kong (“White Paper”). At the time, in response to certain sections of the White Paper, various parties (including prominent individuals, groups and media outlets) spoke of need for Judges in Hong Kong to make oath that they will pledge their allegiance to the HKSARand to “love the country” (愛國), as well as potential legal liability where judges are considered not to have abided by such oaths. The PLG is concerned that the requirement now in 2016 for Legislative Council election candidates to sign the Declaration could be a first step towards a capricious use of such statutory declarations in different contexts to achieve political ends.
(2) The capricious use of electoral laws is common in authoritarian regimes. We sincerely hope that the Declaration is not used as the first step towards an illegal restriction of fundamental rights in Hong Kong, such as that of standing for election and of free speech.
7. We therefore demand that the EAC acts in accordance with all provisions the Basic Law, especially those setting out fundamental rights of residents which are given paramount legal status, in the exercise of its functions and powers.
Progressive Lawyers Group
15 July 2016
(1) The English version of the Press Statement can be found here
(2) The Chinese version of the Press Statement can be found here
(3) The Declaration can be found here
Article was originally published in Stand News on 15 July 2016