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EAC's request to sign Confirmation Form has legal basis
Following is issued on behalf of the Electoral Affairs Commission:
     The Chairman of the Electoral Affairs Commission (EAC), Mr Justice Barnabas Fung Wah, met Legislative Council members this afternoon (July 19) in response to their requests. He reiterated that Section 40 of the Legislative Council Ordinance stipulates that a person who runs in the Legislative Council election must sign a declaration in the nomination form as part of the statutory nomination procedure, stating that he/she will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region, otherwise, he/she will not be validly nominated as a candidate. This is the current legal requirement and has been adopted in the Legislative Council elections in the past years.
     “The EAC notices that there have been comments and proposals in the public arena which have deviated from ‘one country, two systems’ and the constitutional status of Hong Kong as prescribed in the Basic law.  In this regard, there are public concerns on whether candidates fully understand the Basic Law, in particular Article 1, Article 12 and Article 159(4),” Mr Justice Fung said.
     According to Section 42A of the Legislative Council Ordinance and Section 16 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (the Regulation), the Returning Officers are required to decide whether a nomination is valid according to the law. The Returning Officers would take into account all relevant information before deciding whether a nomination is valid. If a Returning Officer has queries as to whether a candidate has fully complied with the legal requirements, he/she may, according to Sections 10 or 11 of the Regulation, request the candidate to provide any other information the Returning Officer deems appropriate to satisfy him/her that the nomination is valid. In addition, the EAC may, according to Sections 4 and 5 of the Electoral Affairs Commission Ordinance, make arrangements and take steps it considers appropriate for the purpose of ensuring that elections are conducted openly, honestly and fairly.
     To ensure that the nomination procedure is completed in accordance with the law, the EAC has prepared a Confirmation Form for the use of the Returning Officers. On one hand, the Confirmation Form would assist the Returning Officers in the exercise of their statutory power to discharge their duties under the nomination procedure to ensure that all candidates fully understand the legal requirements and the responsibilities concerned, and are bona fide in signing the declaration in the nomination form. On the other hand, a candidate may confirm that in signing the relevant declaration in the Nomination Form, he/she clearly understands the Basic Law and its Articles mentioned above.
     “The introduction of the Confirmation Form has sound legal basis.  The measure, entirely based on legal and procedural considerations, aims to ensure that the nomination procedure is completed in accordance with the law. I appeal to all the candidates to submit the duly signed Confirmation Form to the Returning Officers to facilitate the Returning Officers to complete the nomination procedure in accordance with the law,” Mr Justice Fung said.
     If a candidate has not submitted the Confirmation Form, the Returning Officer has the legal power under the Regulation to ask for further information from the candidate. For questions as to whether the statutory nomination procedure has been duly completed, the Returning Officer will seek the advice of the Department of Justice as necessary and take appropriate action to ascertain whether or not the nomination of the candidate concerned has complied with the legal requirements. As mentioned above, the decision on whether a nomination is valid or not is solely made by the Returning Officer having regard to requirements under the law. While the EAC would assist the Returning Officers to discharge their statutory duties, it does not have any statutory power and role to play with regard to the decision made by the Returning Officers.
     The EAC, an independent statutory body, conducts and supervises elections in accordance with the Electoral Affairs Commission Ordinance. The EAC will, as in the past, ensure that the Legislative Council election is conducted in an open, fair and honest manner.
Ends/Tuesday, July 19, 2016
Issued at HKT 21:49
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