(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。同樣地，《香港人權法案條例》 第二十一條規定，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 。這些權利也受到《公民權利和政治權利國際公約》所保障。
5. 更遺憾的是，該決定（及其他與提名有關的決定）的決策過程全不透明，官員作風獨斷，程序亦自相矛盾。選舉主任用以判定一個參選人是否真心「擁護基本法」及「誓言效忠香港特別行政區」的準則及證據完全不清晰。有些參選人即使沒有簽署所謂的確認書，但其提名亦被視為有效（例如司馬文先生），而有些參選人（例如姚松炎博士及陳國強先生）則被選舉主任要求在非常短的期限內回答一些看來與其政見有關，含糊及範圍廣闊的問題（而根據《香港人權法案條例》 第二十一條，這些事項與一個人有沒有資格參選是毫無關係的），更有其他人（例如周庭小姐）連就取消其資格所依賴的證據作出回應的機會都沒有，便直接取消其參選資格。這明顯違反程序公義的要求，並且不公平地破壞被提名人參選的權利。
1. The Progressive Lawyers Group (“PLG”) is highly dismayed by the decision of the Returning Officer to invalidate the nomination of a candidate (Ms Agnes Chow) for the 2018 Legislative Council By-election (“the Decision”). PLG is also enormously disappointed by the Hong Kong Government’s response to media enquiries (“the Response”), in which the Government explicitly supports the Decision. The Decision has not only unjustly deprived a candidate of the constitutional right to stand for election; it has also unfairly restricted the Hong Kong public’s right to vote for their preferred candidate.
2. In PLG’s previous statement regarding the 2016 Legislative Council election, we emphasised that the right to stand for election is a fundamental right. In the present context, we wish to reiterate that:
(a) Under Article 26 of the Basic Law, all Hong Kong permanent residents have the fundamental right to vote and the right to stand for election. Likewise, Article 21 of the Hong Kong Bill of Rights states 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. These rights are also enshrined in the International Covenant on Civil and Political Rights.
(b) Further, all Hong Kong permanent residents have the fundamental right to free speech under Article 27 of the Basic Law and Article 16 of the Bill of Rights.
(c) The Hong Kong courts have made clear that any purported restriction on fundamental rights must be interpreted narrowly. It follows, in our view, that a narrow definition must be given to the concepts of ‘failing to uphold the Basic Law’ and ‘failing to pledge allegiance to the Hong Kong Special Administrative Region’.
3. The requirement under section 40(1)(b)(i) of the Legislative Council Ordinance (Cap. 542) for a “declaration to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region” is, on its face, a procedural requirement. It is highly questionable whether that subsection empowers the Returning Officer to investigate the nominees’ state of mind and then make a determination on their level of sincerity when signing the declaration. Yet that is precisely what the Returning Officer has done in the Decision.
4. Further, the Returning Officer is supposed to be a politically neutral civil servant who makes an independent decision on whether the nomination procedures have been fulfilled. Indeed, in the Response, the Government has portrayed the Decision as having been made by the Returning Officer. That being the case, it is alarming that the Returning Officer has based her Decision on legal advice from the Secretary of Justice ‒ who is a political appointee and part of the executive branch of the Government. In the circumstances, it is seriously doubtful whether the Returning Officer has made the Decision independently and in a manner that is free from political considerations. It also appears that the Government is trying to shift responsibility for the Decision (and other decisions relating to nominations) onto the Returning Officers, when in fact the Government itself participated in the making of those very decisions.
5. Even more regrettably, the process by which the Decision (and other decisions relating to nominations) were made is opaque, arbitrary, and inconsistent. It is wholly unclear what criteria and evidence would be used by Returning Officers in determining whether a candidate truly has an intention to ‘uphold the Basic Law’ and ‘pledge allegiance to the Hong Kong Special Administrative Region’. Some nominations have been held valid even though the candidate did not sign the so-called confirmation form (e.g. Mr Paul Zimmerman). Some nominees (i.e. Dr Edward Yiu and Mr James Chan) have been requested by the Returning Officer to answer, within a very short timeframe, vague and wide-ranging questions purportedly relating to their political stance (which under Article 21 of the Bill of Rights should be irrelevant to one’s eligibility to stand for election). Yet others (i.e. Ms Chow) have been disqualified without being given any opportunity to respond to the alleged evidence used to justify her disqualification. This clearly violates the requirements of due process, and unfairly undermines nominees’ right to stand for election.
6. Thus, PLG is gravely concerned by the capricious use of electoral regulations to disqualify certain candidates on the basis of their political affiliations and political stance. The Decision has trampled on the fundamental rights of Hong Kong permanent residents to stand for election, to vote, and to engage in free speech. We strongly call upon the Government to ensure that any decision regarding the nomination of candidates gives real and effective protection to such fundamental rights.
Progressive Lawyers Group
30 January 2018