My sister, Michelle-Ann Iking's 3% chance of conceiving naturally was a success! Here's her story:
(My apologies as I've been overwhelmed with personal matters. I've only managed to get to my desk. So finally got around posting this).
This is the story behind my sister's pregnancy struggle and how she shared her journey over her Facebook page.
Because some may have not caught her LIVE session chat with me (https://www.facebook.com/daphneiking/videos/687743128744960/) , or read her lengthy post (as it's a private page);
she's allowed me to copy and paste it over my wall, in case you need to know more about her thought process on how AND why she focused on the 3% success probability. Read on.
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Posted 10th May 2020.
FB Credit: Michelle-Ann Iking
A week ago today I celebrated becoming a mother to our second, long awaited child.
Please forgive this mother's LONG (self-indulgent) post, journalling what this significant milestone has meant for her personally, for her own fallible memory's sake as well as maybe to share one day with her son.
If all you were wondering was whether I had delivered and if mum and bub are OK, please be assured the whole KkLM family are thriving tremendously, and continue scrolling right along your Newsfeed 😁.
OUR 3% MIRACLE
All babies are miracles... and none more so than our precious Kiaen Aaryan (pronounced KEY-n AR-yen), whose name derives from Sanskrit origins meaning:
Grace of God
Spiritual
Kind
Benevolent
...words espousing the gratitude Kishore and I feel for Kiaen's arrival as our "3% miracle".
He was conceived, naturally, after 3 years of Kishore and I hoping, praying and 'endeavoring'... and only couples for whom the objective switches from pure recreation to (elusive) procreation will understand how this is less fun than it sounds ...
3 years during which time we had consensus from 3 different doctors that we, particularly I (with my advancing age etc etc) had only a 3% chance of natural conception and that our best hope for a sibling for our firstborn, Lara Anoushka, was via IVF.
Lara herself was an 'intervention baby', being one of the 20% of babies successfully conceived through the less intrusive IUI process, after a year and a half of trying naturally and already being told then my age was a debilitating factor.
We had tried another round of IUI for her sibling in 2017 when Lara was a year old. And that time we fell into the ranks of the 80% of would-be parents for whom it would be an exercise in futility... who would go home, comfort each other as best they could, while individually masking their own personal disappointment... hoping for the best, 'the next time around'...
So the improbability ratio of 97% against natural conception of our second baby, as concurred by the combined opinion of 3 medical professionals, was a very real, very daunting figure for us to have to mentally deal with.
Deep, DEEP, down in my heart however, though I had many a day of doubt... I kept a core kernel of faith that somehow, I would again experience the privilege of pregnancy, and again, have a chance at childbirth.
And so, the optimist in me would tell myself, "Well, there have to be people who fall in the 3% bucket... why shouldn't WE be part of the 3%?"
Those who know me well, understand my belief in the Law of Attraction, the philosophy of focusing your mind only on what you want to attract, not on what you don't want, and so even as Kishore and I prepared to go into significant personal debt to attempt IVF in the 2nd half of 2019, I marshalled a last ditch effort to hone in on that 3% chance of natural conception... through research coming across fertility supplements that I ordered from the US and sent to a friend in Singapore to redirect to me because the supplier would not deliver to Malaysia.
I made us as a couple take the supplements in the 3 month 'priming period' in the lead up to the IVF procedure - preconditioning our bodies for optimum results, if you will.
At the same time, I had invested in a sophisticated fertility monitor, with probes and digital sensors for daily tracking of saliva and other unmentionable fluid samples, designed to pinpoint with chemical accuracy my state of fertility on any given day.
(UPDATE: For those interested - I obtained the supplements and Ovacue Fertility Monitor from https://www.fairhavenhealth.com/. Though I had my supplies delivered to a friend in Singapore, and redirected to me here since the US site does not deliver to Malaysia, there are local distributors for these products, you will just have to research the trustworthiness of the vendors yourself...)
I had set an intention - in the 3 months of pre-IVF priming, I would consume what seemed like a pharmacy's worth of supplements, and track fertility religiously... in hopes that somehow, within the 3 month priming period, we would conceive naturally and potentially save ourselves a down payment on a new property... and this was just a projection on financial costs of IVF, not even considering the physical, emotional and mental toll it involves, with no guarantee of a baby at the end of it all...
It was a continuation of an intention embedded even with my first pregnancy, where all the big ticket baby items were consciously purchased for use by a future sibling, in gender neutral colours, in hopes that sibling would be a brother "for a balanced pair", though of course any healthy child would be a welcome blessing.
It was a very conscious determination to always skew my thoughts in service of what the end objective was. For example, when 3+year old Lara would innocently express impatience at not yet having a sibling, at one point suggesting that since we were "taking too long to give her a baby brother/sister", perhaps we should just "go buy a baby from a shop", instead of getting defensive or berating the baby that she herself was, we enlisted Lara's help to pray for her sibling... so in any place of worship, or sacred ground of any kind that we passed thereon, Lara would stop, close her eyes, bow her small head and place her tiny hands together in prayer, reciting earnestly, "Please God, please give me a baby brother or baby sister."
After months and months of watching Lara do this, in the constancy of her childlike chant, Kishore started feeling the pressure of possibly disappointing Lara if her prayer was not answered. Whereas for me, Lara's recitation of her simple wish became like a strengthening mantra, our collective intention imbued with greater power with each repetition, and the goal of a sibling kept very much in the forefront of our minds (hence our calling Lara our 'project manager' in this endeavour).
And somehow in the 2nd month of that 3 month period, a positive + sign appeared on one of the home pregnancy tests I had grown accustomed to taking - my version of the lottery tickets others keep buying in hopes of hitting the jackpot, with all the cyclical anticipation and more often than not, disappointment, that entails...
This time however I was not disappointed.
With God's Grace, (hence 'Kiaen', a variation of 'Kiaan' which means 'Grace of God'), my focus on our joining the ranks of the 3% had materialised.
It seems poetic then, that Kiaen chose to make his appearance on the 3rd May, ironically the same date that his paternal great-grandfather departed this world for the next... such that in the combined words of Kishore and his father Kai Vello Suppiah,
"The 1st generation Suppiah left on 3rd May and the 4th generation Suppiah arrived on 3rd May after 41yrs...
One leaves, another comes, the legacy lives on..."
***
KIAEN AARYAN SUPPIAH'S BIRTH STORY
On Sunday 3rd May, I was 40 weeks and 5 days pregnant.
The baby was, in my mind, very UN-fashionably late past his due date of 29th April, so as much as I had willed and 'manifested' the privilege of pregnancy, to say I was keen to be done with it all was an understatement.
In the weeks leading to up to my full term, I had experienced increasingly intense Braxton-Hicks 'practice contractions' - annoying for me for the discomfort involved, stressful for Kishore who was on tenterhooks with the false alarms, on constant alert for when we would actually need to leave home for the hospital.
Having become a Hypnobirthing student and advocate from my first pregnancy with Lara, and thus being equipped with
(1) a lack of fear about childbirth in general and
(2) a basic understanding of how all the sensations I would experience fit into the big picture of my body bringing our baby closer to us,
I was less stressed - content to wait for the baby to be "fully cooked" and come out whenever he was ready... though I wouldn't have minded at all if the cooking time ended sooner, rather than later.
With Lara, I had been somewhat 'forced' into an induced labour, even though she was not yet due, and that had resulted in a 5 DAY LABOUR, a Birth Story for another post, so I was not inclined to chemically induce labour, even though I was assured that for second time mothers, it would be 'much faster and easier'...
That morning, I had a hunch *maybe* that day was the day, because in contrast to previous weeks' sensations of tightening, pressure and even spasms that were concentrated in the front of my abdomen and occasionally shot through my sides and legs, I felt period - like cramping in my lower back which I had not felt before throughout the pregnancy.
It was about 8am in the morning then, and my 'surges' were still relatively mild ('surges' being Hypnobirthing - speak for 'contractions', designed to frame them with the more positive connotations needed to counteract common language in which childbirth is presented as something that is unequivocally painful and traumatic, instead of the miraculous, powerful and natural phenomenon it actually is).
I recall (masochistically?) entertaining the thought of opting NOT to have an epidural JUST TO SEE WHAT IT WOULD BE LIKE...
I figured this would be the last time I would be pregnant and so it would be my 'last chance' to experience 'drug free labour' which, apart from the health benefits for baby and mother, might be *interesting* in a way that people who are curious about what getting a tattoo and skydiving and bungee jumping are like, might find these *interesting*...even knowing there will be pain and risk involved...
Since I have tried tattoos and skydiving (unfortunately not being able to squeeze in bungee-jumping while my life was purely my own to risk at no dependents' possible detriment) a similar curiousity about a no-epidural labour was on my mind...
In the absence of other signs of the onset of labour (like 'bloody show' or my waters breaking), I wanted to wait until the surges were coming every few minutes before we actually left the house for the hospital, not wanting to be one of those couples who rushed in too early and had interminable waits for the next stage in unfamiliar, clinical surroundings and/or were made to go home in an anti-climatic manner.
I was even calm enough through my surges to have the presence of mind to wash and blowdry my hair, knowing if I did deliver soon I would not be allowed this luxury for a while.
Around 9am I asked Kishore to prep for Lara and himself to be dressed and breakfasted so we could head to hospital soon, while I sent messages to family members on both sides informing them 'today might be the day.'
My mother, who had briefly served as a midwife before going back into general nursing and then becoming a nursing tutor, prophetically stated that if what I was experiencing was true labour, "the baby would be out by noon".
The pace in which my surges grew closer together was surprisingly quicker than I expected; and while I asked Lara to "Hurry up with breakfast" with only a tad more urgency than we normally tell her to do, little Missy being prone to dilly-dallying at meals, I probably freaked Kishore out when about 930am onwards, I had to instinctively get on my hands and knees a couple of times, eyes closed, trying to practice the Hypnobirthing breathing techniques I had revised to help along the process of my body birthing our child into the world.
I recall him saying a bit frantically as I knelt at our front door, doubled over as he waited for Lara to complete something or other, "Lara hurry up! Can't you see Mama is in so much pain and you are taking your own sweet time??!!"
SIDETRACK: Just the night before, Lara and I had watched a TV show in which a woman gave birth with the usual histrionics accompanying pop culture depictions of labour.
Lara watched the scene, transfixed.
I told her, simply and matter-of-factly, "That's what Mama has to do to get baby brother out Lara, and that's what I had to do for you also."
In most of interactions with my daughter, I have sought to equip her to face life's situations with calmness, truthful common sense, and ideally a minimum of drama.
Those who know the dramatic diva that Lara can be will know that this is a work-in-progress, but her response to me that night showed me some of my 'teachings' were sinking in:
She looked at me unfazed, "But Mama," she said. "You won't cry and scream like that lady, right? You will be BRAVE and stay calm, right?"
#nopressure.
So as we prepped to leave for the hospital I did indeed attempt to be that role model of calm for her, asking her only for her help in keeping very quiet,
"Because Mama needs to focus on bringing baby brother out and she needs quiet to concentrate...".
As we left the house at 10.11am, I texted Kishore's sister Geetha to please prep to pick up Lara from the hospital, and was grateful Kishore had the foresight to ask our gynae to prepare a letter for Geetha to show any police roadblocks between my in-laws' home in Subang Jaya and the hospital in Bangsar, this all happening under the Movement Control Order (MCO).
To Lara's credit, in the journey over to the hospital, she - probably sensing the gravity of the situation, sat very quietly in her seat at the back, and the silence was punctuated only by my occasional deep intakes of breath and some variation of my Ohmmm-like moans when the sensations were at their height.
By the time we got to Pantai Hospital at around 10.30am, my surges were strong enough I requested a wheelchair to assist me in getting to the labour ward, as I did not trust my own legs to support me... and Kishore would have to wait until Geetha had arrived to take Lara back to my in-laws' house before he himself could go up.
I slumped in the wheelchair and was wheeled up to the labour room with my eyes closed the whole time, trying to handle my surges.
I didn't even look up to see the attendant who pushed me... but did make the effort to thank him sincerely when he handed me over, with what seemed like a palpable sense of relief on his part, to the labour ward nurses.
The nurse attending me at Pantai was calm, steady and efficient. I answered some questions and changed into my labour gown while waiting for Kishore to come up, all the while managing the increasingly intense surges with my rusty Hypnobirthing breathing techniques.
By the time Kishore joined me at around 11am (I know these timings based on the timestamps of the 'WhatsApp live feed' of messages Kishore sent to his family), I was asking the nurse on duty, "How soon can I get an epidural??" thinking what crazy woman thought she could do this without drugs???!!!
The nurse checked my cervix dilation, I saw her bloodied glove indicating my mucous plug had dislodged, and she told me, "Well you are already at 7cm (which, for the uninitiated, is 70% of the way to the 10cm dilation needed for birthing), you are really doing well, if you made it this far without any drugs, if can you try and manage without it... I suspect within 2 hours or less you will deliver your baby and since it will take about that time for the anaesthesiologist to be called, epidural to be administered and kick in... it might all be for nothing... but of course the decision is completely up to you... "
So there I was, super torn, should I risk the sensations becoming worse... or risk the epidural becoming a waste?? And of course I was trying to decide this as my labour surges were coming at me stronger and stronger...
I was in such a dilemma...because as a 'recovering approval junkie' there was also a silly element of approval-seeking involved, ("The nurse thinks I can do this without drugs... maybe I CAN do this without drugs... Yay me!") mixed with that element of curiosity I mentioned earlier ("What if I actually CAN do this without drugs... plenty of other women have done it all over the world since time immemorial.. no big deal, how bad can it be...??") so then I thought I would use the financial aspect to be the 'tiebreaker' in my decision making...
I asked the nurse how much an epidural would cost and when she replied "Around MYR1.5k", I still remember Kishore's incredulous face as I asked the question, i.e."Seriously babe, you are gonna think about money right now? If you need the epidural TAKE IT, don't worry about the money!!!"... and while we are not rich by any stretch of the imagination, thankfully RM1.5k is not a quantum that made me swing towards a decision to "better save the money"...
So in the end, I guess my curiosity won out, and I turned down the epidural "just to see what it would be like and if I had it in me" (in addition of course to avoiding the side effects of any drugs introduced into my and the baby's body).
My labour occuring in the time of coronavirus, it was protocol for me to have a COVID19 test done, so the medical staff could apply the necessary precautions. I had heard from a friend Sharon Ruba that the test procedure was uncomfortable, so when the nurse came with the test kit as I was starting another surge, I asked, "Please can I just finish this surge before I do the test?" as I really didn't think I could multitask tackling multiple uncomfortable sensations in one go.
The COVID19 test involved what felt like a looong, skinny cotton bud being inserted into one nostril... I definitely felt more than a tickle as it went in and up, being told to take deep breaths by the nurse. Then she asked me to "Try to swallow" and I felt it go into my nasal cavities where I didn't think anything could go any further, but was proven wrong when she asked me to swallow again and the swab was probed even deeper. Then she warned me there would be some slight discomfort as she prepared to collect a sample... but at that point all I could think about was:
(i) I really don't have much of a choice
(ii) please let this be over before my next surge kicks in
(iii) if all the people breaking the MCO rules knew what it feels like to do this test maybe they won't put themselves at risk of the need to perform one...
In full disclosure as I was transferred into the actual delivery room at some point after 11am, another nurse offered me 'laughing gas' to ostensibly take some of the edge off... I took the self-operated breathing nozzle passed to me but don't recall it making any difference to my sensations..so didn't use it much as it seemed pretty pointless.
I recall some measure of relief when I heard my gynae Dr. Paul entering the room, greeting Kishore and me, and telling us it was going well and it wouldn't be long now and he would see us again shortly.
From my previous labour with Lara I knew the midwives pretty much take you 90% of the way through the labour and when the Dr is called in you are really at the home stretch, so was very relieved to hear his voice though knowing he would leave and come back later meant it wasn't quite over yet.
I do remember realising when I had crossed the Thinning and Opening Phase of labour to the Birthing Phase, by the change in sensations... it is still amazing to me that as the Hypnobirthing book mentioned, having this knowledge I was instinctively able to switch breathing techniques for the next stage of labour .
Was my opting against epidural the right choice for me?
Overall? Yes.
Don't get me wrong.
I *almost* regretted the decision several times during active labour... especially when I felt my body being taken over by an overwhelming compulsion to push that did not seem conscious and was accompanied by involuntary gutteral moans where I literally just thought to myself, "I surrender, God do with me what you will..." (super dramatic I know but VERY real at the time...).
I think I experienced 3-4 such natural explusive reflexes (?), rhythmically pushing the baby down the birth path, one of which was accompanied by what felt like a swoosh of water coming out of a hose with a diameter the size of a golf ball... this was when I realised my water had finally broken...
The nurses kept instructing me to do different things, to keep breathing, to move to my side, then to move to the middle, to raise my feet... and when I didn't comply, Kishore (who was with me throughout both my labours) tried to help them by repeating the instructions prefaced with "Sayang..." but I basically ignored all the intructions because I felt I had no capacity to direct any part of my body to do anything and someone else would have to physically manoeuvre that body part themselves.
When I heard Dr. Paul's voice again and the flurry of commotion surrounding his presence, I knew the time was close... and when I heard the nurse say to Kishore, "Sir, these are your gloves, for when you cut the baby's cord", it was music to my ears...
I'm very, VERY grateful Kiaen slid out after maybe the 4th of those involuntary pushes... the wave of RELIEF when he came out so quickly... it still boggles my mind that my mother was essentially right and as his birth time was 12.02pm, it was *only* about 1.5 hours between our arrival at the hospital and his arrival into the world.
Kiaen was placed on my chest for skin to skin bonding and remained there for a considerable time.
For our short stay in the hospital he would be with us in my maternity ward number C327... another trivially serendipitous sign for me because he was born on the 3rd (May) and our wedding anniversary is 27th (July).
I was discharged the following day 4th May at about 5.30pm, after I got an all clear on COVID19 and a paediatric surgeon did a small procedure on Kiaen to address a tongue-tie that would affect his breastfeeding latch... making the entire duration of our stay about 31 hours.
I have taken the time and effort to record all this down so that whenever life's challenges threaten to get me down I can remind myself, "Ignore the 97% failure probability, focus on the 3% success probability".
Also that the human condition is miraculous and it is such a privilege to experience it.
To our son Kiaen Aaryan, thank you for coming into our lives and choosing us as your parents.
Even though Papa and I are both zombies trying to settle into a night time feeding routine with you, I look forward to spending not only all future Mother's Days, but every day, with you and your Akka...
And last but not least, to my husband Kishore...without whom none of this would be possible - we did it sayang, I love you ❤️
Photo credit: Stayhome session with Samantha Yong Photography (http://samanthayong.com/)
同時也有3部Youtube影片,追蹤數超過79萬的網紅SACHEU,也在其Youtube影片中提到,Clinic I went to for the IUD procedure: http://ppt.on.ca F I N D M E H E RE ! ✨ TikTok: @sacheu Instagram: @sacheu Snapchat: @sacheu Twitter: @s...
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ultra vires
【回覆選舉主任的追問】(Please scroll down for English version)
(選舉主任於11月28日下午四點的追問: https://goo.gl/unqfuP )
我們剛才已經回覆選舉主任,內容如下。感謝法夢成員黃先生協助,大家可參考他的文章:
村代表唔係《基本法》第104條所列既公職喎!
https://bit.ly/2AuHXKD
全文:
「
袁先生:
就你於 2018 年 11 月 28 日來函,現謹覆如下:
█(一)鄉郊代表選舉主任無權提出與確保提名有效無關的問題
1. 我認為你並無權力提出與確保提名有效無關的問題。謹闡釋如 下‥
2. 《鄉郊代表選舉條例》第 24 條規定,「除非提名某人為鄉郊地 區的選舉的候選人的提名表格載有或附有一項由該人簽署的聲明,示明該人會擁護《基本法》和保證效忠香港特別行政區,否則該人不得 獲有效提名。」
《選舉程序(鄉郊代表選舉)規例》第 7(3)條則規定,為了「令[選 舉]主任信納 ... 提名是有效的」,「選舉主任可要求獲提名為候選人的人提供提名表格沒有涵蓋而該主任認為需要的資料」。
3. 區慶祥法官在「陳浩天案」處理過《立法會條例》及 《選舉管 理委員會(選舉程序)(立法會)規例》下的類似條文。即使退一萬步,假設區慶祥在該案中所陳述的法律屬正確(即選舉主任擁有調查候選人 政治信念的權力,而這並無違反人權),「陳浩天案」中有關立法會選 舉的邏輯,亦不可能同樣適用於鄉郊代表選舉。
區慶祥法官考慮過他所認為的立法歷史後(包括籌委會 1996 及1997 年區生認為對立法會選舉方式具約束力的決定),將《立法會條 例》第 40(1)(b)(i)條解讀為是為了執行《基本法》第 104 條而訂立, 所以裁定選舉主任在該條下有權調查候選人實質上是否真誠擁護《基 本法》及效忠中華人民共和國香港特別行政區。
但鄉郊代表並非《基本法》第 104 條中列出的'high office holders of the HKSAR'(「陳浩天案」判詞第 42 段;即「行政長官、主要官員、行政會議成員、立法會議員、各級法院法官和其他司法人員」)。即使是人大常委會 2016 年 11 月 7 日通過對《基本法》第 104 條的解釋, 亦僅指「[第 104 條]規定的宣誓 ... 是參選或者出任該條所列公職的 法定要求和條件。」
4. 再者,立法會在訂立《村代表選舉條例》(2014 年改稱《鄉郊代表選舉條例》)時,完全並無如訂立《立法會條例》時般,考慮或 討論過當中第 24 條下有關聲明規定的內容,背後更無任何有約束力 的決定,要求村代表/鄉郊代表須擁護《基本法》及效忠中華人民共 和國香港特別行政區。
反而時任民政事務局局長何志平 2002 年在動議二讀《村代表選舉條例草案》時清晰地指出,「本條例草案的目的,是為村代表選舉 制定法律條文,以確保選舉公開、公平和公正,並符合《 香港人權法案條例》和《性別歧視條例》的要求」(2002 年 10 月 9 日立法會 會議過程正式紀錄頁 64)。
5. 無論如何,即使區慶祥法官亦須承認,任何有關的聲明規定, 必須從選舉、被選權等基本權利的背景下理解(「陳浩天案」判詞第 80 段)。在缺乏類似所謂立法歷史和《基本法》條文的支持下,實在 難以接受《村代表選舉條例》/《鄉郊代表選舉條例》第 24 條具有 跟《立法會條例》第 40(1)(b)(i)條一樣的效力(假設第 24 條本身是合 憲的話)。
法律上,選舉主任只可為了相關賦權條文的目的行使其法定權力:
'Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely - that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended . . .'
- Porter v Magill [2002] 2 AC 357 at para 19 per Lord Bingham quoting
Wade and Forsyth.
(亦可參考 Wong Kam Yuen v Commissioner for Television and Entertainment Licensing [2003] 2 HKC 21 (HKCFI) at para 21 per Hartmann J.)
在這方面,《選舉程序(鄉郊代表選舉)規例》第 7(3)條的目的,是確保提名屬有效。如果《鄉郊代表選舉條例》第 24 條在正確的理解 下,並無強制候選人實質上證明自己擁護《基本法》和保證效忠中華 人民共和國香港特別行政區,亦即提名的有效性,並不依賴候選人的 實質政治信念,《規例》第 7(3)條自然就不可能賦權選舉主任作出與 此有關的提問,否則他或她行事的目的,就是法律並無授權、亦無預 見(假設《立法會條例》具此效果)的政治審查,而非確保提名的有 效性。
故此,我認為你並無權力提出與確保提名有效無關的問題。
█(二)回應提問(a):你認為我沒有正面回答你的問題,我並不同意你的說法,因為你的問題帶着錯誤的假設。你的問題假設「自決前 途」只能為一個特定機制,因此才有所謂主張香港獨立是否其中一個 「選項」的錯誤設想。然而,正如我昨日的回覆所指,「我提倡或支 持推動《基本法》和政制的民主化改革,包括但不限於修改《基本法》 158 及 159 條,作為中共封殺真普選後,港人自決前途的目標」;與 此同時,我沒有主張「香港獨立」。
█(三)回應提問(b):你在今日的回信中指「並沒有要求你就其他人的行為或主張表達意見」,不過,提問(b)的意思正是要求任何人若 希望成為鄉郊代表選舉候選人,不單自己不可主張港獨,也要明確地 反對甚至禁止其他參選人有相關主張。我認為這個要求違反《基本法》 及《香港人權法案條例》對言論自由的保障,亦顯然超出《鄉郊代表 選舉條例》對參選人的要求。
請你儘快就我於 2018 年 11 月 22 日提交的提名表格、11 月 27 日的回覆及上述的答覆,決定我的提名是否有效。若你需要其他的補充資料,請以電郵聯絡我。我就你的查詢保留一切權利。
2018 年 11 月 28 日
二零一九年鄉郊一般選舉
元崗新村選舉參選人
朱凱廸
」
【Reply to More Questions from Returning Officer】
Mr. Yuen,
I hereby reply to your letter dated 28 November:
█(1) Returning Officer of Rural Representative Election has no power to make any inquiries not made with a view to ensuring the validity of nomination
1. I consider that you have no power to make any inquiries insofar as they are not made with a view to ensuring the validity of my nomination. My reasons are as follows.
2. Section 24 of the Rural Representative Election Ordinance provides that “[a] person is not validly nominated as a candidate for an election for a Rural Area unless the nomination form includes or is accompanied by a declaration, signed by the person, to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.”
On the other hand, section 7(3) of the Electoral Procedure (Rural Representative Election) Regulation provides that, “in order [for the Returning Officer] to be satisfied … as to the validity of the nomination”, “[t]he Returning Officer may require a person who is nominated as a candidate to furnish such information which is not covered by the nomination form as that Officer considers necessary”.
3. In Chan Ho Tin v Lo Ying Ki Alan [2018] 2 HKLRD 7, Mr Justice Thomas Au Hing-cheung (“Au J”) considered similar provisions in the Legislative Council Ordinance and the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation. Even assuming, for the sake of argument, that the law as stated by Au J in that case were correct (namely that a Returning Officer has the power to inquire into the political beliefs of a candidate, without violating human rights), it is clear that the reasoning as applied in the case of Chan Ho Tin, which relates solely to Legislative Council elections, cannot be extended by analogy to Rural Representative Elections.
Having considered what he thought to be the legislative history (including two Resolutions passed by the Preparatory Committee for the Hong Kong Special Administrative Region in 1996 and 1997 respectively which Au J believed to be binding), Au J interpreted section 40(1)(b)(i) of the Legislative Council Ordinance as having been enacted for the purpose of implementing Article 104 of the Basic Law, and decided on that basis that the Returning Officer had under that section the power to inquire whether a candidate, as a matter of substance, genuinely upholds the Basic Law and pledges allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.
The important distinction, however, is that rural representatives are not those “high office holders of the HKSAR” listed in Article 104 of the Basic Law (Chan Ho Tin at para 42; namely “the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary”). Even the Standing Committee of the National People’s Congress, in its Interpretation of Article 104 of the Basic Law adopted on 7 November 2016, merely states that ‘the legal requirements and preconditions [contained in Article 104 are] for standing for election in respect of or taking up the public office specified in the Article.’
4. Further, unlike when enacting the Legislative Council Ordinance, the Legislative Council in enacting the Village Representative Election Ordinance (renamed in 2014 the Rural Representative Election Ordinance) never discussed nor gave any consideration whatsoever to the content of the requirement of declarations, still less to binding resolution of any sort which would compel Village Representatives (now Rural Representatives) to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.
What the then Secretary for Home Affairs, Patrick Ho Chi-ping, did clearly pointed out, in moving the Second Reading of the Village Representative Election Bill in 2002, is that “[t]he purpose of the Bill is to bring Village Representative (VR) elections under a statutory framework in order to ensure that they are conducted in an open, fair and honest manner and that they are consistent with the Hong Kong Bill of Rights Ordinance and the Sex Discrimination Ordinance” (Legislative Council, Official Record of Proceedings (9 October 2002) at p 90)
5. In any event, even Au J has had to concede that any relevant requirement of declarations “must be viewed against the involvement of the fundamental election right” (Chan Ho Tin at para 80). Here, in the absence of similar so-called legislative history or Basic Law provisions in support, it is difficult to accept that section 24 of the Village Representative Election Ordinance (now the Rural Representative Election Ordinance) is intended to have the same effect as section 40(1)(b)(i) of the Legislative Council Ordinance (on the assumption that section 24 were not unconstitutional).
In law, the Returning Officer may only exercise her statutory powers for the public purpose for which the powers were conferred:
'Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely - that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended . . .'
- Porter v Magill [2002] 2 AC 357 at para 19 per Lord Bingham quoting Wade and Forsyth.
(See also Wong Kam Yuen v Commissioner for Television and Entertainment Licensing [2003] 2 HKC 21 (HKCFI) at para 21 per Hartmann J.)
In this regard, the object of section 7(3) of the Electoral Procedure (Rural Representative Election) Regulation is to ensure that a candidate’s nomination is valid. If, properly construed, section 24 of the Rural Representative Election Ordinance does not have the effect of compelling candidates to prove, as a matter of substance, that they uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, then the validity of the nomination does not turn on the substantive political beliefs of the candidate. Section 7(3) of the Regulation, in turn, logically cannot have empowered the Returning Officer to make inquiries in this connection, for otherwise the Officer would be acting for the purpose of political screening, which is neither authorised nor envisaged by law (assuming that the Legislative Council Ordinance does, by contrast, have this effect), rather than of ensuring the validity of the nomination.
Accordingly, it is my considered view that you have no power to make any inquiries insofar as they are not made with a view to ensuring the validity of my nomination.
█(2) In answer to question (a): you take the view that I have not directly answered your question, but I do not agree, because your said question carries mistaken assumptions. Your question assumes "self-determination" can only take the form of one designated mechanism, and hence the mistaken hypothesis on whether Hong Kong independence constitute an "option" for such mechanism. However, as stated in my reply yesterday, "I advocate or support moving for democratic reform of the Basic Law and the political system, including but not limited to amending articles 158 and 159 of the Basic Law, as a goal for the Hong Kong people in determining their own future after the Communist Party of China banned genuine universal suffrage"; at the same time, I do not advocate for "Hong Kong independence".
█(3) In answer to question (b): You stated in your reply today "did not require (me) to express opinion on other people's actions or propositions", but the meaning of question (b) is precisely a requirement on anyone, if they wish to become eligible as a candidate for Rural Representative elections, not only to not advocate for Hong Kong independence themselves, but must also clearly oppose or prohibit other nominees in having related propositions. I am of the view that this requirement violates the protections on freedom of speech under the Basic law and the Hong Kong Bill of Rights Ordinance, and clearly exceeds the requirements imposed by the Rural Representative Election Ordinance on persons nominated as a candidate.
Please confirm as soon as possible the validity of my nomination based on my nomination form submitted on 22 November 2018 and my replies to your questions dated 27 November 2018. Should you require other supplemental information, please contact me via email. I reserve all my rights in relation to your inquiry.
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welcome to my channel SACHEU (pronounced SAH-CHOO)! My name is Sarah and I'm an Asian Youtuber, immigrant, feminist, skincare enthusiast, makeup addict, philosophy graduate and passionate advocate for all women.✨
*A Note about Sponsorships*
Sponsored videos help keep the channel alive. I take only around 20% of all the sponsorship offers I receive and I only work with brands and endorse products I truly enjoy. All sponsorships are disclosed verbally in the video as well as in video descriptions for full transparency :) ^some links are affiliate meaning I earn a small commission from every sale made through my recommendation
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