- The Election Observation Project (EOP), established by The Comparative Governance and Policy Research Centre of the Department of Government & International Studies at Hong Kong Baptist University and Civil Rights Observer in September 2019, serves as an independent academic and civil society platform for election observation and monitoring. During the 2019 District Council election, EOP offered support to election monitoring networks in all the 18 districts in Hong Kong and conducted a comprehensive examination on the electoral process in the previous District Council election. EOP was carried out with reference to international standards for democratic elections—including but not limited to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, Code of Conduct for International Election Observers, as well as authoritative international academic research on electoral integrity and election observations in different parts of the world. EOP has examined incidents of electoral malpractice and encouraged civic participation in defense of electoral integrity which in our view has a positive effect on democratic development.
- In line with the international practices of election observation, we are of the view that a serious consideration should be given by the Electoral Affairs Commission (EAC) to enable international and local election observation in Hong Kong through the legal framework. The legal framework should provide observers with full access to the entire electoral process without undue barriers, such as an overly burdensome accreditation process.
- In response to the public consultation of Proposed Guidelines on Election-related Activities in respect of the Legislative Council Election (PG) released by EAC in March 2020, EOP takes the liberty to put forward its observation and recommendations on a number of key areas in the election cycle with reference to international norms and standards on electoral integrity and our study of the District Council election in November 2019.
- We are of the view that the EAC should step up its efforts to address the growing concerns about the political and administrative manipulations which threaten the integrity of the elections and undermine the public’s trust in the electoral process and eventually the outcomes.
- Therefore, we are disappointed to note that the “major changes” being put forward by the EAC include measures to facilitate voters who have special needs to “vote with priority” (PG 5.37(a)). It is quite impossible for the EAC to define what it regards as “voters with special needs” in conclusive and exhaustive manners. There will also be a situation where the presiding officers (PROs) will have to decide whether voters who claim to have special needs should vote with priority. We are concerned that the suggestion, however well-meaning, will increase the waiting time considerably for other voters and give rise to unwanted arguments and conflicts in the face of concerted attempts to organize voters with special needs to take advantage of the proposed arrangement.
- Hong Kong has a small number of polling stations when compared to other jurisdictions. In the 2016 LegCo election, there were a mere 571 stations for 3.8 million voters. And recently, in the District Council election in November 2019 where all 452 seats were contested, there were only 615 stations for more than 4 million voters. In Croatia, there were more than 6000 polling station for 3.7 million voters in the last general election. At the Presidential and Parliamentary elections in Taiwan earlier this year, each polling station served an average of 1200 voters. Arguably, the shortage of venues for elections in Hong Kong has been partly compensated for by long voting hours, and the first-come-first-served principle has helped to maintain a calm and orderly atmosphere even during the peak hours.
- We are of the view that the EAC should set a target of increasing the number of polling / counting stations and lowering the average number of voter per station which should help to reduce the waiting time for voters and to enhance the experience of public participation in the electoral process. For the LegCo election in September 2020, necessary arrangements at the polling stations can be made for voters with special needs without compromising the first-come-first-served principle. Specifically, we advise the PROs to prepare a designated waiting area on the premises where voters with special needs could sit and wait for their turn to vote. We notice that such an arrangement has already been in place at the 2019 District Council election, as the EAC Chairman described when he released the PG for public consultation on 9 March 2020:
- “On polling day of 2019 DCOE, after being informed of long queues at some polling stations, the EAC immediately instructed all presiding officers (PROs) to adopt flexible arrangements in accordance with the principle of equality. For instance, where electors who have difficulties in standing for a long time, the PRO might mark their position in the queue and allow them to sit while waiting for their turn of collecting the ballot paper from the issuing desk.”
- Turning to the counting procedures, we are of the view that the proposed change to give the PROs to specify the specifying the number of public entrants having regard to the capacity of each of the counting stations (PG 5.86) may give rise an impression that the PROs may limit the number of people witnessing the counting in arbitrary manner. Moreover, the EAC Chairman’s suggestion of “video-recording the entire counting process in the counting station for the sake of maintaining order as well as for evidence, if necessary” should not be implemented without careful justifications, planning and consultation. We therefore advise the EAC to draw up a Code of Conduct delineating the Roles and Expectations for everyone present at the counting stations and to provide the staff with the necessary trainings to improve the effectiveness of the communication with the citizens who may wish to express their concerns during the counting procedures.
- We agree to the EAC’s suggestion to allow voters to check if a line has been drawn on his/her entry on the copy of register with they collect ballot papers without compromising the secrecy of ballot. As there are bound to be doubts and concerns among voters, we strongly advise the EAC to inform the public as to how this new arrangement will be like in practice.
- We agree to the EAC’s intention to enhance the public’s knowledge on the polling arrangements as a whole, not just displaying in the public area of the counting station the same set of samples for determination of validity of questionable ballots, but also the public’s confidence in a whole polling arrangements.
- For that, we have specified in this submission eleven areas where improvements and streamlining could be made to enhance the public’s participation in the election process to ensure elections are conducted in open, fair and honest manner.
- The EOP holds the view that, the commitment to electoral integrity goes beyond minor revisions of electoral guidelines. One of the fundamental issues that threaten a free and fair election in Hong Kong lies in the authority of the EAC. The existing legal framework of the EAC is restrictive (CAP.541). Furthermore, the existing EAC members, together with the Nomination Advisory Committee, appear to lack both the power and the will to check and balance the decisions by the Returning Officers over the validity of nominations. The EOP urges the EAC to review its compositions of members, roles, powers and competences in a comprehensive manner, to carry out public consultation and to put forward necessary institutional and legal reforms to the Legislative Council and the Chief Executive to address the citizens’ growing concerns about electoral integrity.
- The EOP urges the EAC to follow good international practices to develop a partnership with international and local election observation missions and to enhance transparency, fairness and accountability of all those concerned through re-engineering the organization and procedures of the elections. We look forward to engaging the EAC and stakeholders in the electoral process to address concerns about electoral integrity.
2. GUIDING PRINCIPLES
2.1 HUMAN RIGHTS PROTECTIONS
- Protections of human rights of citizens, nominees and candidates in accordance with the International Covenant on Civil and Political Rights, the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap. 383) shall be of paramount importance. The EAC should endeavour to demonstrate to Hong Kong society and the international community how norms and principles of international human rights protection have been incorporated into electoral management and electoral process and stated in the guidelines.
- As an independent body, the EAC has appeared to be unable to address the growing concerns of Hong Kong people about the powers of the police and government departments in restricting the form and content of campaign activities. The EAC has a role in upholding free speech, freedom of assembly and other civil liberties which are part and partial of the electoral process for the elections to be considered free, fair and honest.
- The freedom of speech needs to be treated with due diligence. Therefore, it is not a democratic practice as in PG 10.10 for a written notification, including the submission of campaign materials, to be handed in to the for police to receive campaign materials prior to the election meetings.
- The freedom of assembly needs to be protected and police should be entitled to prevent or dismiss any public meetings only in exceptional cases. The language in PG 10.12 allowing the prohibition of the holding of any public meetings is rather vague, and there should be a procedure to appeal the police decision.
- Observation of elections is a human right envisioned in the Universal Declaration on Human Rights and international convents that are applicable to Hong Kong, guaranteeing the political rights of citizens. A serious consideration should be given by the EAC to enable international and local election observation in Hong Kong through the legal framework. The legal framework should provide observers with full access to the entire electoral process without undue barriers, such as an overly burdensome accreditation process, and should include the protection of the right to seek, receive, and impart information.
2.2 TRANSPARENCY AND ACCOUNTABILITY
- The election process should be transparent in all phases. This includes transparency of electoral management bodies, candidates, media and other interlocutors as well as all election procedures and materials. The full transparency of EAC itself is of utmost importance in order to win and maintain public confidence in the outcomes of elections and information pertinent to voters and candidates must be made fully available in a timely manner.
- Therefore, the EAC should take the necessary measures and adopt the Guidelines to include information on all petitions and complaint procedures and the status of their resolution on its website, ensure that candidates’ financial reports are published in an open-data format on its website, and publish a consolidated list of polling stations with the number of electors in each of the stations on its website in an open-data format.
- The EAC should design an on-line application where PROs or COs can enter the data simultaneously via an official online platform from the protocol. The data should be made available on a designated EAC website to inform voters about the turnout and the counting results in real time, and for citizens, agents of candidates and observers who are present at the stations to compare the election results with election results posted at their polling stations.
- The EAC should permit members of the public to witness the opening of polling stations and voting within polling stations, the conversion of the polling stations into counting stations and the counting procedures as practicable as possible.
- The EAC should facilitate observation of elections by interested civil society organizations and academic bodies to ensure full adherence to the principles of human rights in line with the aim of the Guidelines set out in PG 1.21 by inviting and enabling the public to take an active part in the election process to ensure elections are conducted in open, fair and honest manner;
- The EAC should enhance transparency of its operations on the polling day by making public its activities such as the opening of the stations, complaints, transfer of ballot boxes, counting across Hong Kong, as well as by publicizing its decisions and statements in a timely manner.
3. LEVEL-PLAYING FIELD
3.1 VOTER REGISTRATION
- The overall voter registration should be a continuous, on-going process. There is a need to review if some of the deadlines are necessary in the digital age. In principle, voter registration should be adjusted to enable voter registration closer to the election day.
- The current practice deprived the right to vote for those who reach 18 between 25 July and Legislative Council Election polling day, which is unproportionate administrative barrier to a person’s right to participate in public life guaranteed by Article 21 of Hong Kong Bill of Rights (Cap. 383). Hong Kong permanent residents who will reach 18 on or before the polling day should enjoy their political rights.
- Registered voters who change their residential addresses within a 4-month period before the election day should fully enjoy their political rights.
- The EAC should inform that public the overall number of electors, and the number of electors per constituencies and per polling stations.
- If it represents an unnecessary hurdle for citizens, the objections on Preliminary register of voters to be included need not to be made in person to the Registration and Electoral Office (REO) as in PG 2.30, but rather possible online or through other communication channels to reassemble the current practice of submission of voter registration forms via post, fax, emailing the scanned copy, and by uploading the scanned copy at the REO Online Upload Platform.
- The Proposed Guidelines appear to remind citizens who consider running in elections should prepare to declare expenses. What is not always clear is whether prospective candidates are required to declare expenses for their involvement in the candidate selection process and submit audited accounts accordingly.
- For the nomination process to be transparent and efficient, the nomination process must lay down specific procedural deadlines. For instance, all nominations should be decided upon by the ROs no later than 7 days after the nomination deadline PG 4.36. To avoid delayed notice, as reflected in the case of Mr. Joshua Wong’s invalidation of nomination in 2019 District Council election, a deadline should be prescribed for ROs to receive and accept any corrected information by candidates in PG 4.38 and inform them of their decision as soon as possible.
- For voters and the citizenry at large to believe that elections are free and fair, the rights to participate in elections should not be subject to unreasonable restrictions. When deciding on the validity of the nominations of prospective candidates, the ROs should only base their decision on facts as they are but not on subjective interpretations of the facts and what motives the candidates may or may not have. The nomination procedures should not be allowed to morph into a form of political vetting on behalf of the government as such in PG 4.42 c. The increasing number of cases of disqualification since 2016 is a violation of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.
- Prospective candidates’ right to appeal against an unfavourable decision by the ROs should be handled in timely manner by the system of courts. The current arrangement is time-consuming and costly. When the case reaches the court, the entire matter is likely to be “an academic exercise” months after the elections.
- The candidates should be given a clear instruction on how to appeal rejections of nominations to the EAC/Committee on Complaints which should resolve all appeals regarding the nominations in time for candidates to run for election smoothly, should they be allowed to run. Ideally, court proceedings should also be completed in time, should the decision of the EAC/Complaints Committee be appealed. The Agnes Chow case in 2018 is an illustration of how such delay is detrimental to the principle of fair elections.
- The qualification for nominations stipulated as “ordinarily residence in Hong Kong” should not be left to the RO’s subjective interpretations. The absence from the ordinary residence for business purposes/work/study should be added, in the duration of less than 6 months before the election day.
- The review of the provision that media reports on candidate’s activity must also contain information on all other candidates in the respective constituency as in PG 11.8 is overdue. A constructive public discussion with media representatives on the matter is highly desirable.
- The provision in PG 11.11. to include all candidates on the list in election forums seems practically impossible and might provoke confusion within the electorate. Each list should have the right to nominate a list representative who will partake in a specific forum.
- Avoiding unfair publicity should be extended to regulate the behaviour of incumbents.
- The EAC must step up its action against campaign advertisements packaged as news and editorial materials as the polling day approaches and on the polling day rather than upholding the equal treatment principle as a formality for news coverage.
- The provision in PG 11.32 that radio and TV stations should not air political advertisement might be counter-beneficial to the electorate if they are receiving most of the election information through radio and TV stations. This restriction can become a loophole if not extended to cover the government’s APIs during the campaign period and on the polling day.
3.4 ELECTION DAY PROCEDURES
- The number of election staff including the sorting and counting agents for each polling station should be specified based on the number of electors. The scale of manpower, their deployment, the selection/appointment methods, as well as their roles and responsibilities on the election day should be made known to the public. Discretionary power of Presiding Officers shall be qualified.
- The trainings materials used by the EAC for preparing the staff should not be treated as “for internal use only”. The publication of the materials could help the public to understand the entire process and reduce misunderstanding.
- Alongside with candidates and their representatives, the opening, voting and counting procedures should be open for public scrutiny by individual voters and/or representatives of non-governmental organizations.
- As international practice, observers, candidates and their agents, should have access to inspect all election materials and observe all stages of electoral process which is now not the case.
- Could the presence of public and/or representatives of non-governmental organizations not be secured, alternatively all polling and counting stations could be equipped with a camera system enabling online broadcast and archiving, with special diligence paid to protect the secrecy of the vote.
- Police and other disciplinary forces should not be stationed within the polling stations or counting stations as this be a form of intimidation for some voters. Instead, they can be on call or in Non-Canvassing Zone / No-Staying Zone.
- During voting, hourly turnout figures at each polling station should be displayed at an official online platform for public information, as well as after the close of the poll.
- Locally accredited media should be allowed to make a short footage within the polling station with due diligence) and protecting the secrecy of the vote (PG 5.66).
- During the opening procedures at the dedicated polling stations situated in penal institutions (PG 5.31 and PG 5.32), if no candidates or agents are present, the first voter should inspect the election materials, the ballot boxes, and ballot papers but not the security personnel.
- The current proposal enables the PRO to dismiss anyone from counting, which may be arbitrary and therefore a source of argument. A Code of Conduct for all present at the counting station should be drawn up to define the roles and expectations according.
- While the counting of ballots is mostly carried out at the polling stations equally for election results to be transparent, transferring ballots boxes from some polling stations to ballot sorting stations first, and then to counting stations may work against the transparency of the process. If the use of sorting stations cannot be avoided, observers and candidates’ agents should be allowed to oversee the process. Here, cameras can also be installed to provide live coverage which will help members of the public to oversee the process of ballot sorting.
- During counting, the ballots from each ballot box should be counted before they are mixed with other ballots and their number should be compared with the number of voters.
- The candidates and their agents should be entitled to inspect the invalid ballots and make complaints if necessary. The reasons for the recounts should be specified in the guidelines to ensure fair counting procedures and reduce possibility of disputes on misuse of such mechanism.
- The EAC should provide an explanation on not folding the ballots from Functional Constituency elections, according to PG 5.54.
- With respect to Chapter 5 Part VII POSTPONEMENT OR ADJOURNMENT OF THE ELECTION, THE POLLING OR THE COUNTING OF VOTES, there is no information about what the procedures to follow to ensure the security and integrity of the affected polling / counting stations and all the election-related documents, the ballot boxes and ballots papers in question.
3.5 EXIT POLLS
- Exit polls (PC 15.1-15.20) that are used by candidates for campaign purposes on the polling day should be counted into their expenses, however, the EAC does not seem to have devised proper methods and allocated resources to exercise effective scrutiny over the collection and (mis)use of exit poll data.
3.6 ELECTION FINANCE AND DECLARATION OF ELECTION EXPENSES
- Election donations and expenses 32 should be made public on the EAC’s web site in open, searchable format containing different categories of election expenses (advertisements, election meetings, etc.).
- The number of donors who gave less than HK$1000, in cash or in kind, should be reported to enhance transparency.
4. ELECTORAL MANAGEMENT BODY
4.1 ENGAGEMENT OF STAFF, AND CIVIL SERVANTS AND POLITICAL APOINTEES
- In order to protect the integrity of civil service, the civil servants should refrain from electioneering activities and from supporting any candidate.
- Where the Guidelines (PG 19.2) allow the departure from the norm, the EAC should demand the Government to provide timely and accurate information about the number of civil servants involved, where they work, their ranks and the number of hours spent by civil servants in electioneering. The same can be said for the political appointees in PG 19.13 to prevent the misuse of administrative resources.
4.2 MISUSE OF ADMINISTRATIVE RESOURCES
- The guidelines should rigorously define the misuse of administrative and public resources in terms of substance and penalties. The guidelines misuse of resources should be extended to persons beyond candidates, such as incumbents who endorse candidate(s) instead of seeking re-election.
5. COMPLAINT MECHANISM
5.1 COMPLAINTS AND PETITIONS
- The EAC report after each election contains information and data on complaints and petitions. We are of the view that the complaints and petitions procedures should be easily understandable and user-friendly for all election participants and stakeholder throughout the entire electoral cycle. The system should be clear about the categorization of the types of complaints received, with precise timeframe for the public bodies concerned to carry out investigation and reach decisions, including in the pre-election, election day and post-election periods.
- Complaints should be managed centrally and transparently, published on EAC’s web site, information on the cases should also include those reported to the police and the ICAC.
- All complaints and petitions must adhere to a transparent process, candidates, electors and voters need to have a clear view of the entire process; therefore PG 20.6 and PG 20.9 should be expanded.
- The election day complaints at polling stations should be made in a written format on a prescribed form and constitute an integral part of election documentation as in PG 20.11 to serve as a basis for the complaint process.
- The EAC is advised to consider the benefits of setting up a Tribunal to handle election-related complaints immediately after the election and before the deadline for judicial review.
- The EOP has specified in this submission eleven areas where improvements and streamlining could be made to enhance the public’s participation in the election process to ensure elections are conducted in open, fair and honest manner. However, we would like to remind the EAC that the commitment to electoral integrity goes beyond minor revisions of electoral guidelines. We are of the view that the EAC should step up its efforts to address the growing concerns about the political and administrative manipulations which threaten the integrity of the elections and undermine the public’s trust in the electoral process and eventually the outcomes.
- One of the fundamental issues that threaten a free and fair election in Hong Kong lies in the authority of the EAC. The existing legal framework of the EAC is restrictive (CAP.541) and it has appeared to lack both the power and the will to check and balance the decisions by the Returning Officers over the validity of nominations. Moreover, as an independent body, the EAC has appeared to be unable to address the growing concerns of Hong Kong people about the powers of the police and government departments in restricting the form and content of campaign activities. The EAC has a role in upholding free speech, freedom of assembly and other civil liberties which are part and partial of the electoral process for the elections to be considered free, fair and honest.
- A serious consideration should be given by the EAC to enable international and local election observation in Hong Kong through the legal framework. The legal framework should provide observers with full access to the entire electoral process without undue barriers, such as an overly burdensome accreditation process, and should include the protection of the right to seek, receive, and impart information.
- The EOP urges the EAC to review its compositions of members, roles, powers and competences in a comprehensive manner, to carry out public consultation and to put forward necessary institutional and legal reforms to the Legislative Council and the Chief Executive to address the citizens’ growing concerns about electoral integrity.
- For the LegCo election in September 2020, necessary arrangements at the polling stations can be made for voters with special needs without compromising the first-come-first-served principle. Specifically, we advise the PROs to prepare a designated waiting area on the premises where voters with special needs could sit and wait for their turn to vote. There is no need for the PROs to decide who should vote with priority.
- The EOP is of the view that the EAC should set a target of increasing the number of polling / counting stations and lowering the average number of voter per station which should help to reduce the waiting time for voters and to enhance the experience of public participation in the electoral process.
- With respect to the proposed changes to the counting procedures, we are concerned that the PROs will use the new powers to limit the number of people witnessing the counting in arbitrary manner. The EAC Chairman’s suggestion of “video-recording the entire counting process in the counting station for the sake of maintaining order as well as for evidence, if necessary” should not be implemented without careful justifications, planning and consultation. For the LegCo election in 2020, we advise the EAC to draw up a Code of Conduct delineating the Roles and Expectations for everyone present at the counting stations and to provide the staff with the necessary trainings to improve the effectiveness of the communication with the citizens who may wish to express their concerns during the counting procedures.
- The EOP would like to conclude by thanking the EAC in advance for considering this submission and the suggestions therein. We should like to meet with the EAC in due course to discuss the matter in fuller details and to allow EOP to introduce its plan for election observation during the LegCo election. Please do not hesitate to contact us if you have any queries and for further information.
DATED ON 6TH APRIL 2020