Saturday, May 26, 2012

Verdict exposes loophole in election spending regulation

On May 24, the Court of Final Appeals dismissed my appeal on the election petition against the result of the 2008 Legco election in the IT Functional Constituency, where my opponent lodged an expensive TV ad campaign just prior to the nomination period –$220,000 spent just days before the election period, against a $336,000 election expense limit imposed by law, that if counted would have meant an illegal overspending.

One may recall that in 2008 the ruling by the Court of First Instance on an election petition would be final. I appealed against that and won that constitutional case in 2010.  Subsequently the Government amended relevant laws for Legco, District Council and village representative elections, to allow an appeal after the first ruling on an election petition directly to the CFA.  I consider that a victory well fought for the rights of all future political candidates in Hong Kong.

But an equally important issue is whether a candidate can spend huge amount of money closely imminent to election periods and not declare such as expenses, thus bypassing the election spending cap.  That was why I made my appeal.

Unfortunately, the CFA judgment considered that the definition of a "candidate" (and hence the way to treat what expenses as incured by such "candidates" related to an election) in Hong Kong would be different from other jurisdictions such as England, where expenses could be considered as "reasonably imminent" and counted as election expenses.  Not so for Hong Kong, the final court thinks.

I respect the ruling, as a final ruling on the existing law, but this surely has exposed a loophole that individuals and political parties with means can take advantage of and even abuse, by ferociously advertising yet not declaring until the nomination period starts, totally bypassing any election expense limit.

I am sure there will be a flood of such "image building" advertising all over Hong Kong in the run-up to the start of nominations for the Legco election in July.  If society does not want to see our elections becoming overly and unfairly favored to the financially endowed, this is obviously a much more imminently critical loophole to mend than how to prevent legislators from standing for re-election after resigning, and needlessly blocking the Legco process now because of the government's mistaken priority and insistence.


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