More vig­i­lance re­quired on the Thun­derGo plan

Song Sio-chong ques­tions the fair­ness and le­gal­ity of the Thun­derGo cam­paign, ar­gu­ing that it should be given stricter su­per­vi­sion — par­tic­u­larly in its dis­sem­i­na­tion of data be­fore the clos­ing of Leg­isla­tive Coun­cil polls

China Daily (Hong Kong) - - COMMENT -

The Thun­derGo cam­paign launched by “Oc­cupy Cen­tral” co-founder Benny Tai Yiu-ting dur­ing the Septem­ber Leg­isla­tive Coun­cil elec­tion has pro­voked heated de­bate about its le­gal­ity. Through a smart­phone pro­gram, the or­ga­niz­ers col­lected data on vot­ers’ pref­er­ences for the can­di­dates on the polling day in a way sim­i­lar to an exit poll. They then dis­sem­i­nated the data along with a list of their rec­om­mended can­di­dates.

Thun­derGo did have an im­pact on the out­come of the elec­tion. Some vet­eran “pan-demo­cratic” leg­is­la­tors failed to get re-elected while 12 rad­i­cal can­di­dates en­dorsed by Thun­derGo won with an un­ex­pected num­ber of votes be­cause of the ma­neu­ver. Can­di­dates on Thun­derGo’s rec­om­mended list in ef­fect grabbed votes from those who were not on the list. In short, the re­sults were swayed as the or­ga­niz­ers of Thun­derGo had wished. The public can’t help but ques­tion the le­gal­ity of such a ma­neu­ver.

Since Thun­derGo is quite sim­i­lar to an exit poll, I be­lieve it could be an­a­lyzed from two as­pects — the nor­mal prac­tices of exit polls, and can­vass­ing. This anal­ogy is ap­pro­pri­ate if the com­mon-law prin­ci­ple that sim­i­lar cases should be treated sim­i­larly is ac­cept­able.

First, Thun­derGo has shunned su­per­vi­sion. Exit polls are sub­ject to reg­u­la­tory ap­proval. Any per­son or or­ga­ni­za­tion in­tend­ing to con­duct an exit poll is re­quired by the Reg­is­tra­tion and Elec­toral Of­fice (REO) to pro­vide in­for­ma­tion in­clud­ing the name, ad­dress, tele­phone num­ber, and iden­tity doc­u­ment num­ber of the ap­pli­cant and the peo­ple re­spon­si­ble for exit polling at each polling sta­tion dur­ing the polling day. The ap­pli­cant is also re­quired to sign an un­der­tak­ing to abide by the guide­lines gov­ern­ing the con­duct of the exit poll.

In com­par­i­son, Thun­derGo has a much larger ad­verse ef­fect than a typ­i­cal exit poll. If the elec­tion author­ity had ex­er­cised su­per­vi­sion on exit polls pre­vi­ously, it has to pay greater at­ten­tion to Thun­derGo. But the REO ap­peared to know almost noth­ing about those who col­lected the data, ei­ther mod­i­fied or not mod­i­fied; it only learned about Tai’s Thun­derGo cam­paign from the me­dia. Tai did not prom­ise the REO not to in­ap­pro­pri­ately in­flu­ence and dis­turb the im­ple­men­ta­tion of a fair, ob­jec­tive and im­par­tial elec­tion. The au­thor­i­ties need to ex­er­cise some su­per­vi­sion of Thun­derGo.

Sec­ond, the Elec­toral Af­fairs Com­mis­sion (EAC) has al­ways re­minded us that any per­son or or­ga­ni­za­tion in­voked in an exit poll should not an­nounce the re­sults of the exit poll or make spe­cific re­marks or pre­dic­tions on the per­for­mance of in­di­vid­ual can­di­dates be­fore the close of the poll. If the exit poll data are in­ap­pro­pri­ately pub­lished be­fore the poll ends, it may in­flu­ence the de­ci­sion of vot­ers who have yet to cast their votes. News and cur­rent af­fair pro­grams are sub­ject to the Tele­vi­sion and Ra­dio Codes of Prac­tice on Pro­gramme Stan­dards to en­sure fair­ness, ob­jec­tiv­ity and im­par­tial­ity. The au­thor is a Hong Kong vet­eran com­men­ta­tor and PhD in law at Pek­ing Univer­sity.

In com­par­i­son, Thun­derGo has a much larger ad­verse ef­fect than a typ­i­cal exit poll. If the elec­tion author­ity had ex­er­cised su­per­vi­sion on exit polls pre­vi­ously, it has to pay greater at­ten­tion to Thun­derGo.”

How­ever, it is noted that Thun­derGo has vi­o­lated the said le­gal frame­work as fol­lows:

First, Thun­derGo pub­lished the so-called “opin­ion poll data” be­fore the close of the LegCo poll, rather than af­ter the close of the poll. The in­ten­tion and ob­jec­tive of Thun­derGo were clear — to serve as a can­vass­ing poll for can­di­dates it pre­ferred with­out le­gal ba­sis.

Sec­ond, Thun­derGo made spe­cific re­marks or pre­dic­tions on the per­for­mance of in­di­vid­ual can­di­dates when dis­sem­i­nat­ing the so-called “opin­ion poll”, which served its or­ga­niz­ers’ agenda rather than be­ing pure data or in­for­ma­tion. It can hardly be con­sid­ered as fair, ob­jec­tive and im­par­tial.

Third, on the polling day, can­vass­ing ac­tiv­i­ties sug­gest­ing vot­ers not vote for any can­di­date are not al­lowed within no-can­vass­ing zones (NCZ) ex­cept for static dis­plays of elec­tion ad­ver­tise­ments that are autho­rized by the re­turn­ing of­fi­cer or the pre­sid­ing of­fi­cer of the rel­e­vant polling sta­tion. In such a case, the pre­sid­ing of­fi­cer will try his best to en­sure no­body car­ries out any ac­tiv­i­ties — other than those per­mit­ted in NCZs — to per­suade or in­duce any elec­tor to vote or not to vote. It ap­pears that Thun­derGo’s mes­sages through var­i­ous chan­nels on its rec­om­mended list of can­di­dates for elec­tors to vote or not to vote for should also not be al­lowed.

Fol­low­ing the Guide­lines on Elec­tion-re­lated Ac­tiv­i­ties, I un­der­stand that apart from crim­i­nal sanc­tions, pro­vided in the Leg­isla­tive Coun­cil Or­di­nance, the EAC may give a rep­ri­mand or cen­sure in a public state­ment. This will in­clude the name of the per­son or or­ga­ni­za­tion in the rel­e­vant exit poll case. This should ap­ply to Thun­derGo, as it failed to heed or com­ply with the guide­lines of a fair, ob­jec­tive and im­par­tial elec­tion. With­out a proper warning, and pun­ish­ment, Thun­derGo will likely re­peat this.

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