By Jeffie Lam

Accusations of double standards after Edward Leung Tin-kei’s candidacy found invalid on basis he did not intend to uphold city’s Basic Law

The city’s returning officers have never been placed under much scrutiny in previous elections, but lawyers have now cast doubt over whether these civil servants should enjoy the right to ban potential candidates for their political views.

Hours after Cora Ho Lai-sheung, the returning officer for New Territories East, invalidated the candidacy of Edward Leung Tin-kei, whom she ruled had no intention to uphold the city’s Basic Law, the localist declared it was a “controlled race” and pledged to request a judicial review and election petition against her decision which, if successful, could force a by-election.

The returning officers were also accused of applying double standards as some aspirants, who had supported the independence cause “in a personal capacity”, were given the green light to run.

The long-awaited ruling came after the Electoral Affairs Commission abruptly introduced a contentious measure – which had not been discussed in the city’s legislative or executive branch – just two days before nomination period began, requiring candidates to sign an extra form declaring the city an inalienable part of China.

Leung and two pan-democrats took the issue to court last week by arguing the extra declaration had no legal basis and was a form of political censorship, but their bid was not granted an immediate hearing from the court. The development eventually prompted Leung to give in and sign the form, claiming he would drop his stance for independence in order to run.

Edward Leung Tin-kei was banned from entering the Legco elections. Photo: David Wong

But the U-turn failed to convince Ho, who yesterday said she did not trust Leung had “genuinely changed” his previous stance on independence.

“When a candidate has filed the basic declaration provided in the statute, it seems anomalous for the returning officers to unilaterally make a decision that they are not sincere,” Professor Michael Davis, formerly a legal academic at the University of Hong Kong, told the Post.

Davis argued that it would be excessive for a returning officer to be charged with the responsibility to judge whether an aspirant had advocated improper political beliefs – when the candidate had already fully complied with procedural requirements outlined by law.

Leung’s pro-independence remarks should be protected speech as long as there is no incitement to illegal action, Davis said.

Another concern was why Leung – who managed to secure 16 per cent of votes in the New Territories East by-election in February – would be banned from a second race in just five months’ time.

Davis noted that the returning officers seemed not to claim or apply such power before and that such use of authority should require legislative approval.

Barrister Wilson Leung, of the Progressive Lawyers Group, also said returning officers, who were all civil servants, should uphold political neutrality and avoid making political judgments.

But senior counsel Ronny Tong Ka-wah argued otherwise, saying it was the aspirants’ duty to convince the returning officers they would uphold the Basic Law, not the other way around.

Edward Leung was allowed to run in February as he did not strongly push for the independence cause when he signed up for the poll back then, Tong claimed. “Even the returning officer has made a mistake in February, it does not mean that he would stay with the mistake forever”.

Article originally appeared in South China Morning Post on 2 August 2016.