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Editorial : Returning officers' tentacles have spread too wide

【明報專訊】EDDIE CHU, a member of the Legislative Council, applied to run for the role of village representative. His candidacy has been ruled invalid by a returning officer. This has triggered another "disqualification" controversy.

Since the Legco swearing-in saga in 2016, controversies about the disqualification of candidates in elections have arisen repeatedly. Early this year the High Court rejected Andy Chan's election petition, confirming that a returning officer has the power to decide whether people nominated to run in Legislative Council elections have satisfied the requirement that they should declare to "uphold the Basic Law". However, not all cases of disqualification are the same. Whether a returning officer has handled the matter appropriately has to be decided in a case-by-case manner. It is difficult to make broad generalisations. The decision by the returning officer in question this time to ban Eddie Chu from running for village representative is, obviously, relatively controversial.

The incident surrounding the statement in which Eddie Chu expressed support for including Hong Kong's independence as one of the options for Hong Kong's self-determination happened after the nomination period for the 2016 Legco elections. When Chu was sworn in as a lawmaker, the National People's Congress had yet to interpret Article 104 of the Basic Law. Judging from the timeline of what happened and the legal perspective, it is difficult to argue that the returning officer's decision this time is tantamount to "moving the goalposts politically" just because the returning officer confirmed Chu's nomination back then and the Legislative Council allowed him to be sworn in. The biggest problem with the disqualification of Chu this time is whether the government should apply the same set of rules targeting organs of political powers to the elections of village representatives, who do not belong to organs of political powers.

According to Article 104 of the Basic Law, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary must, in accordance with law, swear to uphold the Basic Law and swear allegiance to the HKSAR when assuming office. In its interpretation of the Basic Law, the National People's Congress stressed that this is the legal requirement and condition for running in elections and assuming related public office. The article targets only organs of political power. As for organisations that are not organs of political power, Articles 97 and 98 mention that the HKSAR can set up these district organisations to be consulted by the government or to be responsible for providing services in such fields as culture, recreation and environmental sanitation. The powers and functions of the district organisations and the method for their formation shall be prescribed by law.

The system of village representation has long existed in the rural areas of the New Territories. The Rural Representative Election Ordinance came into being thanks to a ruling handed down in 2000 by the Court of Final Appeal that the system of elections in villages violated human rights and discriminated against non-indigenous residents. Rural representative elections are a public affair, and are handled by government departments. But they are fundamentally different in nature from the system of District Councils created by the government.

Organs of political power are different from non-organs of political power, and village representative elections differ in nature from Legislative Council and District Council elections. Though they are all handled by the government, it is not necessary to standardise all the requirements. An aggressive attempt to standardise elections might lead to questions such as where the line should be drawn and how standardised should elections be. Some professional groups, for example, take part in Legco functional constituency elections and even chief executive elections. If the government demands that the requirement of upholding the Basic Law be included in these internal elections, it might provoke a backlash. That Eddie Chu has been barred from the village representative election has to do with where the line should be drawn. The most appropriate thing to do is for Eddie Chu to file an election petition so that the matter will be decided by the court.

明報社評2018.12.04:村代表無關政權組織 選舉主任手伸太長了

立法會議員朱凱廸參選鄉郊代表,選舉主任裁定提名無效,再度引發DQ(取消參選資格)風波。

自2016年立法會宣誓風波以來,DQ爭議一再出現。今年初高等法院駁回了陳浩天的選舉呈請,確認選舉主任有權裁定獲提名參選立法會的人有否實質遵從「擁護基本法」聲明要求,然而每宗DQ個案情况不盡相同,選舉主任處理是否合度,需要逐一審視,很難一概而論。今次選舉主任DQ朱凱廸村代表參選資格,爭議之處明顯較大。

朱凱廸支持港獨為自決選項的聲明,發生於2016年立法會改選提名期結束之後,朱宣誓就任議員時,人大亦未就基本法第104條釋法,從事件時序和法律角度而言,很難因為當年選舉主任確認了朱的提名,以及立法會容許他宣誓,就說今次選舉主任的決定是「政治審查搬龍門」。今次DQ最大問題,是政府應否將針對政權機構的遊戲規則,搬到非政權機構的村代表選舉中。

基本法第104條提到,行政長官、主要官員、行政會議成員、立法會議員、各級法院法官及其他司法人員,就職時必須依法宣誓擁護基本法和效忠特區,人大釋法強調這是參選或出任相關公職的法定要求和條件。有關條文針對的全是政權機構。至於「非政權機構」,基本法第97及98條提到,特區可以設立這類區域組織,發揮諮詢角色或提供文娛衛生等服務,其職權和組成方法由法律規定。

村代表制度一早存在於新界鄉郊,現有《鄉郊代表選舉條例》,乃是因為2000年終審法院裁定村選制度違反人權歧視非原居民後才制定。鄉郊村代表選舉屬於公共事務,由政府部門主辦,惟其性質跟政府創立的區議會體制有重要不同。

政權機構與非政權機構有別,村選跟立法會以至區議會選舉性質亦有不同,即使同由政府主辦,也不代表必定要劃一標準要求。政府強求統一,反而可能衍生界線應該劃在哪兒、統一到什麼地步的問題,例如某些專業組織有份參與立法會功能界別乃至特首選舉,如果政府因此強行要求它們在內部選舉加入擁護基本法要求,相信將惹來極大反彈。朱凱廸參選村代表被拒,事件涉及這條界線的劃定,最合適的做法是由朱凱廸提出選舉呈請,交由法院定斷。

■Glossary

tentacles : the influence that a large place, organisation or system has and that is hard to avoid

uphold : to support sth that you think is right and make sure that it continues to exist

organ : an official organisation that is part of a larger organisation and has a special purpose

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