HKFP Law Blog Hong Kong Law & Crime Politics & Protest

Legal scholar: ‘Grey area’ for LegCo candidates who violate declaration to uphold Basic Law

Legal scholar and Basic Law Committee member Albert Chen Hung-yee says that there are grey areas in the law regarding the consequences for a Legislative Council election candidate who signs a declaration promising to uphold the Basic Law and then violates it.

On a Monday RTHK show, Chen discussed a declaration that candidates are required to sign, which promises to uphold the Basic Law and to pledge allegiance to the Hong Kong Special Administrative Region. Chen said that it has not been clearly stated what the legal consequences are if a person signs and then violates the declaration. “Under current laws, there are no clear requirements, so it is a grey area.”

Albert Chen Hung-yee

Albert Chen Hung-yee. File Photo: Wikicommons.

Chen also said the existing laws do not require every candidate to sign a declaration, so the signature is an administrative arrangement. Therefore, it does not mean that all candidates who do not sign the declaration will not be able to get an effective nomination, he added.

“It depends on the situation – if one has been advocating for Hong Kong independence and they refuse to sign the declaration… then the electoral officer may question whether the candidate is qualified to run,” Chen said.

district council election poll

Photo: HKFP.

The declaration issued by the EAC last week asked candidates to specifically acknowledge three articles of the Basic Law stating that Hong Kong is an inalienable part of China, although candidates were already required to declare that they will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region in the original nomination form.

Such a declaration was seen as a measure to restrict independence advocates running in the election. But the EAC, upon media enquiries, stated that the declaration was not part of the nomination form, and that refusing to sign it did not mean the nomination will be voided.

Earlier, Progressive Lawyers Group spokesperson Linda Wong questioned whether proposing ideas that were different from the Basic Law necessarily meant one was not “upholding” it. She also said that the Basic Law consists of many articles, including Article 27, which guarantees freedom of speech to Hongkongers – and not just the three that have been highlighted.

Legal scholar: 'Grey area' for LegCo candidates who violate declaration to uphold Basic Law