The controversial new declaration that Legislative Council election candidates were required to sign created confusion and should be withdrawn, the legal sector lawmaker has said.

Pan-democratic lawmakers, many of whom will run in the election in September, met with Justice Barnabas Fung Wah on Tuesday to discuss the confirmation form – which appeared to target independence advocates – requiring candidates to declare that they uphold Basic Law articles on China’s sovereignty over Hong Kong. Concerns were raised about its legality after it was issued last week, days before the nomination period started.

After the meeting, lawmakers quoted Fung, the chairman of the Electoral Affairs Commission (EAC), as saying that the declaration was not legally binding, and that candidates’ eligibility to run would not be affected if they refused to sign.

Dennis Kwok
Dennis Kwok. /GovHK.

“We asked him what the legal basis was for demanding every candidate to sign the confirmation form,” legal sector lawmaker Dennis Kwok Wing-hang said. “He could not produce any.”

The measure was merely an “administrative convenience arrangement” to help returning officers determine whether candidate signatures on the original nomination form’s declaration on upholding the Basic Law were “bona fide,” Fung was quoted as saying.

The meeting also revealed that the EAC only came up with the measure recently, after the last LegCo Panel on Constitutional Affairs meeting on June 20. Neither lawmakers nor the public were consulted before the measure was introduced.

Barnabas Fung
File Photo: GovHK.

Another statement was issued after the meeting by the commission, stating that there was a “sound legal basis” for the introduction of the confirmation form.

But the statement did not clearly communicate the outcome for those who refused to sign, stating only that returning officers “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.”

Kwok restated on a RTHK radio programme on Wednesday that the EAC has no legal basis for requiring candidates to sign the confirmation form.

Edward Leung Tin-kei
Edward Leung Tin-kei. File Photo: Stand News.

He questioned how returning officers would decide whether candidates were genuinely upholding the Basic Law. “Should they submit a hand-written copy of the Basic Law?” he said.

“The grey area is huge… even the Department of Justice could not determine whether someone is signing in good faith,” said Kwok.

For example, he said, it cannot be determined whether candidates who supported Hong Kong independence in the past were supporting the cause when they made the declaration. Therefore, it is difficult to decide whether or not they truly uphold the Basic Law, Kwok said.

“It was creating more administrative confusion than administrative convenience,” he added, urging the EAC to withdraw it.

Some independence advocates, including Edward Leung Tin-kei of Hong Kong Indigenous and Chan Ho-tin of the Hong Kong National Party, and most pan-democratic candidates refused to sign the declaration when registering for the election.

Kris Cheng is a Hong Kong journalist with an interest in local politics. His work has been featured in Washington Post, Public Radio International, Hong Kong Economic Times and others. He has a BSSc in Sociology from the Chinese University of Hong Kong. Kris is HKFP's Editorial Director.