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Bar rules out civil nomination Hong Kong’s barrister body says it is not allowed under Basic Law Article 45

2014.05.02
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THE Hong Kong Bar Association (HKBA, 香港大律師公會) says civil nomination for the chief executive election, as espoused by pan-democrats, violates the Basic Law (基本法).

The association said Article 45 of the mini-constitution has clearly ruled out the nominating committee – which will put candidates out for the 2017 chief executive election – being formed by the whole of the electorate or each and every registered voter.

The bar also disagreed with suggestions that several forms of nomination other than by a broadly representative committee in accordance with democratic procedures are permissible.

“Such a suggestion involves a misapplication of the common law principle that ‘everything is permitted except what is expressly forbidden’ outside of its proper context,” the HKBA stated in a document submitted for the political reform consultation.

But the association said neither the rules in respect of the nominating committee and of its work, nor the committee itself, may sanction the use of or apply political or other opinion as a ground for depriving anyone of the right to stand for election.

“These rules must in practice and substance ensure that the persons entitled to vote shall have a free choice of candidates,” it stated.

The nominating committee’s function is limited to nomination, as it has neither function nor purpose to determine the result of the election. The association said any proposal to introduce into electoral law an additional requirement that a person proposing his candidature to the nominating committee must

“love country, love Hong Kong” is highly questionable as a matter of law.
It said corporate voting should be abolished.

It also opposed limiting the number of candidates running in the 2017 election.

Secretary for Justice (律政司司長) Rimsky Yuen Kwok-keung (袁國強) said the document has a legal perspective.

“At a legal point, neither civil nomination or nomination by political parties would comply with Article 45,” Yuen said.

Secretary for Constitutional and Mainland Affairs (政制及內地事務局局長) Raymond Tam Chi-yuen (譚志源) described the document submitted by the association as “weighty”.

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