Legco Election 2016 > Opinion
Tuesday, August 23, 2016, 23:58

Judicial review by separatists doomed

By Lawrence Ma

Lawrence Ma cites relevant ordinances and legal precedents to show that it is well within the powers and duty of returning officers to scrutinize election candidates.

Returning officers’ administrative decision to reject the election nomination of those Hong Kong separatists who signed the confirmation form may be subject to a judicial review. The issue is whether the returning officer has the power to take into consideration nominees’ political stance and remarks previously made to reject their applications under administrative law.

Judicial review by separatists doomedOn Aug 3, 30 Election Committee members of the legal sector issued a joint statement, stating that s.40 of the Legislative Council Ordinance does not empower a returning officer to make an inquiry as to whether the nominee signed the confirmation in good faith. It followed that returning officers’ subjective decision to reject the separatists’ nominations was a political filtering against the law. On Aug 5, the former chairman of the Hong Kong Bar Association, Edward Chan, on Commercial Radio argued that the duty of the returning officer under LegCo Ordinance was merely to collect the nomination forms and ensure they have been properly completed.

It may be inadvertent but Chan failed to inform the public of the existence of Electoral Affairs Commission Ordinance (Cap 541) s. 4 (h), which relevantly provides:

“4. The functions of the (Election) Commission are-


(h) to generally make arrangements, take such steps or do such other things as it considers appropriate for the purpose of ensuring that elections… are conducted openly, honestly and fairly.”

And that s.2 of the Electoral Affairs Commission Ordinance (Cap 541) states that:

“2. (1) In this ordinance, unless the context otherwise requires-

function includes a power and a duty.”

Simply, the Electoral Affairs Commission has the necessary power and a duty to ensure the electoral process is conducted honestly; but does a returning officer also have the same power and a similar duty?

Section 11 of the Electoral Affairs Commission Ordinance (Cap 541) provides:

“11. The commission may delegate any of its functions… to the chief electoral officer… or any other person it considers fit.”

The Electoral Affairs Commission must have authorized returning officers in many electoral districts to deal with election related matters within their own districts. In fact, many statute laws in Hong Kong as well in other jurisdictions confer administrative officers powers and impose a duty to ensure that any application to the government must be made honestly. For example:

In Wzata v Minister for Immigration and Border Protection (2016) FCCA 305, the Australian Migration Act 1958 empowered the Department of Immigration to approve or to reject visa applications, and during the review process the Department of Immigration had to consider whether the material submitted by applicant was genuine. A Sri Lankan asylum seeker alleged that he had been detained for questioning by the Ministry of National Security of the Sri Lankan government; however, according to reliable information from the Australian embassy in Sri Lanka, there was no evidence he had been arrested. The Department of Immigration also found ambivalence in his testimony such as how he was smuggled into Australia and how much he paid for it. The Department of Immigration dismissed the asylum seeker’s application due to lack of credibility. The asylum seeker appealed to the Federal Court, which held that it was lawful and correct for the Department of Immigration to consider whether the application was supported by honest and credible evidence.

In De Silva v Social Security Commissioner (2001) All ER (D) 45 (Apr), the British Jobseekers Act 1995 conferred a benefit onto the unemployed person subject to a condition that the unemployed person’s spouse did not currently have an income. Section 33 of the Act provided that a Welfare Officer may investigate whether the act had been complied with and whether any unemployed people dishonestly swindled welfare benefits. A welfare officer went to the unemployed person’s home for an investigation and found that he lived in the same house as his wife, and his wife was currently employed. The unemployed man explained that he and his wife had separated, although they were living in the same house; they did their shopping and dining separately. The unemployed man’s explanation was rejected by the government and his application dismissed. The unemployed man failed to appeal to the Social Security Appeal Tribunal and he finally appealed to the Court of Appeal. The English Court of Appeal unanimously held that the government had the power to refuse the application based on the incredibility and inconsistency of the applicant’s testimony.

The fundamental legal principle is that returning officers, under the EAC Ordinance, have the power and duty to ensure the election nomination process is conducted in an honest manner.

How then could an returning officer ensure the electoral process is conducted in an honest manner? When an returning officer found any dishonesty in the nomination process, such as, a nominee having submitted false documents or having made false statements to obtain nomination, the returning officer had the power and duty to investigate, and to dismiss any nomination tainted with dishonesty. Conversely, if a returning officer decided not to dismiss nominations tainted with dishonesty he would be in breach of his statutory duty; such a decision would be overturned upon judicial review.

The author is a barrister and chairman of CA Legal Exchange Foundation.

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