【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.
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