香港大律師公會亦擔心候選人可能會因參加一個政黨，或持有某些政治信念，而被取消參選資格。法院認為選舉提名表格內真誠擁護《基本法》並宣誓效忠香港特別行政區之聲明是一項實質性的規定，而選舉主任有權確認提名的有效性。這種權力應被視為一項實質性的權力。因此，選舉主任有相對應的實質責任，通過查詢參選人的個人和政治信念以確認申報的真實性從而確認提名的有效性。 很遺憾地，此過程可被視作等同於對一名準候選人進行實質政治篩選，但這過程卻並 非在一個公平，公開，確定，和明確的程序下進行，也沒有就選舉主任不利的判定提供任何及時的法律補救，導致有關人士的資格獲無限期取消。特別令人擔憂的是“擁護《基本法》” 的要求是一個不明確的政治概念，及由一名公務員在一個閉門調查下作出詮釋及執行。
2018 年 2 月 14 日
The Hong Kong Bar Association notes and welcomes the affirmation and reiteration, in the recent judgment of Mr Justice Au in the election petition of Mr Chan Hoi Tin, of the fundamental principle of natural justice that a person is entitled to be heard before his right is adversely affected. The judgment also emphasises the need for cogent, clear and compelling evidence to establish objectively that a nominee plainly does not have the intention to uphold the Basic Law and to swear allegiance to the HKSAR, before a Returning Officer is justified in coming to a conclusion that the nomination of a candidate for election is invalid.
In this context the Bar is concerned about the recent disqualification of Ms Agnes Chow from taking part in the by-election of the Legislative Council in March 2018. The decision of the Returning Officer was apparently made without affording Ms Chow any opportunity to be heard.
The Hong Kong Bar Association is also concerned about the disqualification of a candidate to stand for election on the basis of his or her association with a political party or the holding of certain political beliefs. In that regard, the court held that the declaration to be made in the election nomination form that one “will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region” is a substantive requirement and the Returning Officer has the power to confirm the validity of the nomination. This power is held to be a substantive power. It follows that the Returning Officer will have a corresponding substantive duty to confirm the validity of the nomination by inquiring into a candidate’s personal and political beliefs to satisfy himself or herself of the truthfulness of the declaration. This regrettably is equivalent to the introduction of a political screening process for any prospective candidate, and there is no fair, open, certain and clear procedure to regulate this process; nor any timely remedy against an adverse decision of the Returning Officer, resulting in an indefinite duration of disqualification of the persons concerned. It is particularly worrying that the requirement of “upholding the Basic Law” is a vague and imprecise political concept, which has now to be interpreted and administered by a civil servant under a closed door inquiry.
HONG KONG BAR ASSOCIATION
14 February 2018