On 16 October 2019, the day before the end of the nomination period for the District Council election, the Electoral Affairs Commission (EAC) replied to our letter dated 26 September 2019
The Election Observation Project (EOP) would like to thank the EAC for their time to furnish a response to our questions and for their commitment “to ensure that the elections are conducted in an open, fair and honest manner.”
We regret to have to highlight the gaps between our expectations and the EAC’s reply in five important areas under observation.
International Standards of Electoral Integrity
We are disappointed that the EAC fails to refer to the international standards and code of practice of democratic elections, though it is already empowered by law to issue guidelines on election-related activities and monitor the conduct of the election. We are unable to ascertain whether the EAC has made good use of existing international treaties and instruments to delineate its statutory powers. Rather, it seems to have been satisfied to conduct its work as prescribed by the local legislation (4 Hong Kong Ordinances and 8 pieces of statutory legislation).
Nomination of Candidates
Areas where the EAC appears to have abdicated from exercising its authority include the validation of a candidate’s nomination by the Returning Officers (RO). On the one hand, the EAC suggests that “on the part of the eligibility of the prospective candidates for nomination, the prospective candidates and RO may seek advice of the Nomination Advisory Committee (NAC) appointed by EAC.”
On the other hand, the EAC says it “is neither empowered nor involved in the making of such decision and would not provide any advice on the decision made by the RO.” It further suggests it “would not provide any guidelines to the RO in this respect.” The EAC has not provided any information about the number of advice sought by RO or candidates as requested by us.
In our view, the EAC’s statutory powers to ensure that elections are conducted in an open, fair and honest manner would entail ipso facto the obligation to issue guidelines and provide advice on how RO should exercise their powers.
The growing concerns of Hong Kong citizens about the arbitrariness of ROs when disqualifying candidates on grounds of their political affiliations or views expressed elsewhere are not addressed at all by the EAC.
Moreover, we have noticed in this election that the discretionary powers are exercised without consistency or predictability by the ROs across the 18 districts, undermining electoral integrity as a result. For example, some ROs asked candidates to explain their interpretations of the protest slogan ‘Liberate HongKong; Revolution of Our Times,’ whereas others did not. ROs who have taken their time to come to a decision, in some cases even after the close of the nomination period on 17 October, become the cause of unnecessary delay.
In some constituencies, candidates who fear that their nomination will be disqualified put forward an alternative candidate from the same camp or community grouping (Plan B). There are now dozens of constituencies where ROs validated the nomination of the original candidate under scrutiny and their prospective substitute who cannot withdraw after the nomination period.
At the time of writing, one nominated candidate, Joshua Wong of Demosisto, has yet to be validated by the RO, leading to the exceptional postponement of the draw of candidate number for the pending case and the other two validated candidates in the district. Such delay is widely regarded as politically motivated.
Since the 2016 Legislative Council election, the EAC has prepared a Confirmation Form (CF) for signature by the candidates to confirm that they understand the provisions of the Basic Law and the legal requirements and responsibilities involved in making the decision. It has been extended to all other elections by the EAC since. The EAC has said the CF “is not part of the nomination form” and it is up to the candidates on a voluntary basis to sign and confirm that he/she understand the legal requirements.
As it has become clear to citizens that the ROs would not consider CF a relevant piece of information when making up their minds on the validity of candidates’ nomination, we strongly advice the EAC to annul this seemingly superfluous procedure. The EAC should rather develop better tools to oversee the conduct of ROs.
Access to 2019 Final Registers of Electors (FRs)
Public and media access to the FRs has been instrumental for detecting election malpractice such as vote-planting. We are of the view that the current practice has enhanced electoral integrity and played a positive role in developing the public’s confidence in the electoral process.
We notice that access to the FRs has been regulated by the law. As the EAC explained in its response to our inquiry, “Any person who wish to inspect or request for an extract of the FRs is required to complete a form furnished by the Electoral Registration Office (ERO). The ERO will consider each application before entertaining the requests … Any abuse or misuse of such information is an offence and will be liable to a fine and imprisonment on conviction.”
We are therefore very disappointed by the Court of Appeal’s decision on 22 October 2019 in favour of the application by the Junior Police Officers’ Association to order that public access to the register be blocked. We disagree with the Association that public and media access to the FRs could exacerbate the problem of “doxxing” and put the safety of officers and their families in jeopardy. The connection made by the Association is misplaced. We hope that the Court’s decision could be further reviewed and overturned.
Training for Electoral Staff
We are not able to ascertain how well electoral staff are going to be trained and
prepared for the District Council election.
Given that the political atmosphere is tense and there are a growing incidents of
election-related violence, we are disappointed by the EAC’s failure to disclose how
electoral staff are to be “equipped with knowledge on … crisis management…”
To conclude, the EOP is disappointed by the EAC’s current approach to the upcoming
District Council election. In our view, it is time for the EAC to seek legal advice and
review its practices in the aforementioned areas of concern to meet the legitimate
expectations of the public at large.
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