EAC's response to media enquiries on 2018 Legislative Council by-election
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In response to media enquiries on the 2018 Legislative Council by-election, a spokesman for the EAC made the following statement today (January 27):
The EAC, an independent statutory body, supervises the conduct of the Legislative Council elections in accordance with the Electoral Affairs Commission Ordinance (Cap. 541). The EAC is not empowered nor involved in vetting the eligibility of individuals running in the elections.
In accordance with section 78 of the Legislative Council Ordinance (Cap. 542), the EAC has appointed the Returning Officers for the three geographical constituencies and one functional constituency in this by-election. According to section 42A of the Legislative Council Ordinance and section 16 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap. 541D), whether a candidate’s nomination is valid or not is solely determined by the Returning Officer according to the legal requirements and relevant procedures.
For Legislative Council elections, details on the eligibility to be nominated as a candidate, disqualification from being nominated as a candidate and from being elected as a Member, and the requirements to be complied with by persons nominated as candidates are set out in sections 37, 39 and 40 of the Legislative Council Ordinance respectively.
"The Returning Officers solely make independent decisions on whether a candidate complies with and meets the requirements as stipulated in the Ordinance, and whether legal advice shall be sought. All along, the EAC is not empowered nor involved in providing any opinion with regard to decisions made by the Returning Officers. The EAC will, after receiving the list of validly nominated candidates, make practical arrangements for the elections," the spokesman said.
The Returning Officers will exercise their statutory power to process all nominations in accordance with the legal requirements and relevant procedures. Depending on the actual circumstances of each case, the Returning Officer may seek legal advice and according to the law request the candidate to provide additional information that he/she considers necessary. The Returning Officer shall, in accordance with the law and all relevant information, determine and announce whether the nomination is valid. According to section 3(1)(b) of the Electoral Affairs Commission (Nominations Advisory Committees (Legislative Council)) Regulation (Cap. 541C), the Returning Officers may seek the advice of the Nominations Advisory Committee (NAC) as to whether a particular candidate for a general election or by-election is eligible to be, or disqualified from being, nominated as a candidate. However, section 1(2)(a) of the Regulation stipulates that the Regulation does not empower or require the NAC to advise on any matter relating to the requirements under section 40 of the Legislative Council Ordinance.
Also, in accordance with section 19 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, if the Returning Officer decides that a nomination is invalid, the Returning Officer must endorse on the nomination form his/her decision and the reason(s) for it, which will be made available for public inspection in accordance with section 14 of the Regulation.
The spokesman reiterates that the EAC does not have any statutory power with regard to the decision made by the Returning Officers in the nomination procedure. It would only provide support under the legal procedure to the Returning Officers in discharging their statutory duties. As such, the EAC has prepared a Confirmation Form, not part of the nomination form, to elaborate the matters as regulated by section 40(1)(b)(i) of the Legislative Council Ordinance, i.e. the candidate must make a declaration in the nomination form to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region as stipulated by the Ordinance. The Confirmation Form will facilitate the Returning Officers' discharge of their duties under the nomination procedure to ensure that all candidates fully understand the legal requirements, and on such basis, are bona fide when signing the declaration in the nomination form, lest violating the offence of false declaration in the nomination form as stipulated in section 103 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation.
The EAC believes that every Returning Officer will discharge his/her duties in accordance with the legal requirements. Anyone may make an election petition to question the result of an election if he/she is disqualified from being a candidate at an election in accordance with section 61 of the Legislative Council Ordinance. The mechanism has all along been effective. The EAC will, as in the past, ensure that the Legislative Council by-election is conducted in an open, honest and fair manner.
Ends/Saturday, January 27, 2018
Issued at HKT 15:10
Issued at HKT 15:10
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