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5) 全部十二名被取消選舉資格的被提名人已聲明他們擁護《基本法》及保證效忠香港特區（「該聲明」）。高等法院曾裁定若候選人簽署聲明，選舉主任只可以在具有「強而有力，清晰和具說服力的材料，客觀而明顯地顯示即使已簽署聲明被提名的人在獲提名時並無擁護《基本法》和保證效忠中華人民共和國香港特別行政區的意圖」的情況下，裁定候選人不具備所需的意圖。 （後加強調）
a) 根據《基本法》第二十六條，所有香港永久性居民均享有基本的選舉權和被選舉權。《香港人權法案》 （「人權法案」）第二十一條訂明，所有香港永久性居民， 無分任何區別（包括政見或其他主張 )，不受無理限制 ，均應享有投票及被選的權利及機會；及
d) 香港法院亦已確定選舉權是「最重要的政治權利」。 選舉權對於民主和法治至為重要，不能輕易摒棄。
e) 有意義的選舉權需要被選舉權充分受到尊重。「被選舉權是與選民的利益息息相關，因此，此權不應受到不當的限制」 。
1) On 30 July 2020, elections officials announced that the nominations of twelve pro-democracy candidates running in the Legislative Council (“Legco”) elections of 2020 were invalid on the basis that they did not have a genuine and truthful intention to uphold the Basic Law (“BL”) and pledge allegiance to the Hong Kong Special Administrative Region (“HKSAR”).
2) The following day, Chief Executive Carrie Lam purported to exercise her powers under the Emergency Regulations Ordinance (Cap. 241) to postpone the Legco elections by a year to 5 September 2021, citing public health concerns due to the ongoing coronavirus pandemic.
3) The PLG is deeply concerned by the mass disqualifications and the election postponement. Both moves are serious breaches of Hong Kong people’s fundamental rights to vote, to stand for election, and to freedom of speech.
4) The reasons given by the Returning Officers (“RO”) for the disqualifications included that nominees had:-
a) “Solicited interference by foreign governments or political authorities in relation to HKSAR’s affairs;
b) “Expressed an intention to exercise the functions of Legco members after securing a majority in the Legco in such a way as to force the Government to accede to certain demands;
c) “Advocated or promoted Hong Kong independence, self-determination or changing the system of the HKSAR by supporting Hong Kong independence as an option for self-determination;
d) “Expressed an objection in principle to the enactment of the National Security Law by the Standing Committee of the National People’s Congress and its subsequent promulgation as a national law listed in Annex III to the BL; and
e) “Refused to recognise the PRC’s exercise of sovereignty over the HKSAR and the HKSAR’s constitutional status as a local administrative region of the PRC.”
5) All twelve disqualified nominees had previously made declarations that they would uphold the BL and pledge allegiance to the HKSAR (the “Declaration”). The High Court has held that where a nominee has made a Declaration, the RO should only conclude that the nominee does not have the requisite intention where “there is such cogent, clear and compelling evidence which plainly shows objectively that the candidate, notwithstanding the signed Declaration, does not have the intention at the time of the nomination to uphold the BL and swear allegiance to the HKSAR.” (emphasis added)
6) It is questionable whether this high threshold has been met in these disqualifications, i.e., whether the nominees’ prior acts or speech constituted “cogent, clear and compelling evidence” that “plainly shows objectively” that they lack the intention to uphold the BL and pledge allegiance to the HKSAR.
7) The PLG believes that the mass disqualifications and the postponement of the Legco elections run contrary to fundamental rights:-
a) Under BL Article 26, all Hong Kong permanent residents have the fundamental right to vote and the right to stand for election. The Hong Kong Bill of Rights (“HKBOR”) Article 21 provides that all Hong Kong permanent residents have the right and the opportunity to be elected without any distinction of any kind (including political or other opinion) and without unreasonable restrictions; and
b) All Hong Kong permanent residents are promised the right to free speech under BL Article 27 and HKBOR Article 16.
c) Any restrictions to the aforesaid fundamental rights guaranteed in the BL “must be narrowly interpreted”.
d) Hong Kong courts have held that the right to vote is “the most important political right”. It is widely recognized that the right to vote is “fundamental” to “democracy and the rule of law and cannot be lightly set aside.”
e) The right to vote, to be meaningful, requires full respect for the right to stand for election. “[T]he right to stand for election is a right directly linked to the interest of the electorate being given the widest choice of candidate and for this reason, the right ought not to be unduly restricted”.
8) Restrictions on the right to vote and to stand for election must be reasonable and proportionate. Postponing a Legco election by a full year should be the last resort after all other options have been exhausted. Under the Legislative Council Ordinance (Cap. 542) section 44(1), the Chief Executive may direct the postponement of a general election if she is of the opinion that it is “likely to be obstructed, disrupted, undermined or seriously affected by […] any danger to public health or safety” for a maximum of 14 days. Thus the Chief Executive lacks the power to push back the LegCo elections by a year. Furthermore, the Chief Executive has yet to demonstrate that less drastic alternatives have been considered, such as postal ballots or staggered voting. It is instructive to note that other jurisdictions have held general elections over the past months during the pandemic, including Singapore and South Korea.
9) It is becoming increasingly unpredictable what political stances may fall foul of the requirement to intend to uphold the Basic Law and pledge allegiance to the HKSAR (which in any event is a requirement which ought to be “narrowly interpreted”; see para 7(c) above). In July 2016, nominees advocating for Hong Kong independence such as Edward Leung Tin-kei and Andy Chan Ho-tin were barred from running in the 2016 Legco elections. Later that year, six elected lawmakers in support of various degrees of self-determination were disqualified for simply deviating from the prescribed oath of office. In 2018, two more nominees were disqualified in Legco by-elections, while lawmaker Eddie Chu Hoi-dick was barred from running in the rural elections. In 2019, Joshua Wong Chi-fung was disqualified from the District Council. Now, even expressing opposition to the enactment of the National Security Law, and even expressing an intention to vote in Legco in a manner which holds the Government accountable to the demands of one’s constituency, has become a reason to disqualify yet further candidates. Such uncertainty is not conducive to the conduct of free and fair elections under international human rights law.
10) It cannot be emphasized enough how important it is to maintain free and fair elections as a peaceful means of political expression. The right to vote and be elected at genuine periodic elections is a fundamental right that is essential to the maintenance of an orderly and civilized society.
Progressive Lawyers Group
1 August 2020