A Hong Kong court ruled against a pro-independence activist in a landmark case on Tuesday, determining that election officials could ban candidates because of their political views but only when presented with “cogent, clear and compelling” evidence they would not uphold the Basic Law.
To come to such a conclusion, returning officers must give aspirants a “reasonable opportunity” to respond to their concerns, the judge said in a ruling with legal ramifications on the recent disbarment of election candidates such as activist Joshua Wong Chi-fung’s comrade Agnes Chow Ting.
Among three hopefuls barred this time, Chow and another potential candidate, Ventus Lau Wing-hong, were disqualified before being offered a chance to explain themselves.
Since 2016, all aspiring election candidates must submit a separate declaration in their nomination forms that they pledge to uphold the Basic Law, recognising that Hong Kong is an inalienable part of China.
Andy Chan Ho-tin, convenor of the Hong Kong National Party, was among several aspirants banned from the 2016 Legislative Council elections because the returning officer decided he did not mean what he pledged in the declaration over the city’s mini-constitution.
He submitted an election petition in September that year against the ban and the case was heard last June.
In handing out the 104-page judgment on Tuesday, High Court judge Mr Justice Thomas Au Hing-cheung sided with the government’s argument that, rather than merely confirming whether a candidate’s paperwork has been submitted properly, returning officers can determine whether the hopeful was sincere when he or she signed the standard declaration form.
Au wrote that it was “common sense that the demand of a declaration is for the purpose of demanding in substance”, not just a formality.
“Otherwise, what is the purpose and point in having the declaration and it to be signed in the first place?” he wrote.
However, even as he ruled against Chan, Au laid down principles for returning officers to follow in future. He said officers should treat the fact that an entrant had signed the declaration as “strong prima facie” proof that he or she would uphold the Basic Law.
“A returning officer should only conclude otherwise if there is such cogent, clear and compelling evidence which plainly shows objectively that the candidate … does not have the intention at the time of the nomination to uphold the Basic Law,” he wrote.
But he also said fairness required a “reasonable opportunity” for a candidate to respond to a returning officer’s concerns over their sincerity. Chow, before having her application invalidated in January, was not given such an opportunity.
The judgment – which recently seemed moot, given that the election was over – held greater significance again in January after three entrants were barred from running in a Legislative Council by-election set for March 11.
Chow – who renounced her British citizenship to run – was disqualified because of her party Demosisto’s stance. Unlike Chan’s party, Demosisto does not favour Hong Kong breaking away from China, but advocates “self-determination” for the city.
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Chan expressed disappointment with the judgment, and pledged to exhaust all means to challenge the decision, saying it would have further implications on other candidates in the future.
“First, it was pro-independence. Then, it was those who support self-determination … Finally it will be the localists and then the democrats,” he said, slamming the decision as giving returning officers too much power.
Human rights expert and former academic Michael Davis believed the ruling would give Chow a basis to appeal her disqualification. But he raised concerns over the timing of the judgment, which came more than a year after the petition was filed.
First, it was pro-independence … Finally it will be the localists and then the democrats
Andy Chow, Hong Kong National Party
“The bigger problem with all of this electoral controversy is the need to have in place a system of prompt appeal in these electoral cases,” Davis said. “When administrative officers are expected to make such crucial decisions in a democracy there is a need to be able to bring this matter to the courts for a quick review in time to participate in the election. A couple years later is not likely to vindicate this important right.”
He added that Chow’s intention to uphold the Basic Law should be presumed from her signing the declaration form and the fact she had not promoted a call for the city’s independence.
Eric Cheung Tat-ming, principal lecturer at the University of Hong Kong’s law school, said the ruling made it clear the government should not have disqualified any candidates without seeking clarification beforehand.
The ruling proved that banning Chow from the by-election was a political decision, Cheung added.
But in a statement on Tuesday, officials said they welcomed Au’s ruling at the Court of First Instance.
“Advocating ‘independence of the [Hong Kong] SAR’ is inconsistent with the constitutional and legal status of the HKSAR as stipulated in the Basic Law, as well as the established basic policies of the People’s Republic of China regarding Hong Kong,” the statement read.
It said it would support election officials continuing “to determine whether a candidate’s nomination is valid in accordance with the law and all relevant information”.
As for Chan, he lost his chance to run in the citywide elections of September 2016. He lodged the petition leading to Tuesday’s ruling on September 9 that year, five days after the poll. His case was heard in May last year.
His lawyers argued in court that the law only gives returning officers the power to ensure candidates properly submit their nominations. It did not, they said, entitle them to determine whether a candidate was sincere.
They argued that giving returning officers such power would violate the Basic Law and the Hong Kong Bill of Rights, and that there was no basis in law for them to make inquiries about an entrant’s views.
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However, Au said the law allowed officials to “furnish any other information that the returning officer considers appropriate to be satisfied”.
He added that the returning officers did not breach human rights bills because the declaration served a legitimate purpose to protect the constitution and confidence in the legislature.
The judge said Chan’s lawyers’ claims that their client was prejudiced against by not seeing the legal advice the Department of Justice gave the returning officer and by not having the opportunity to respond to the decision were “without merit”.
The government’s case cited a Basic Law interpretation handed down by the National People’s Congress Standing Committee, China’s top legislative body.
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That interpretation was occasioned by a separate disqualification saga in late 2016 and 2017. Back then six lawmakers, including Chow’s Demosisto colleague Nathan Law Kwun-chung, were disqualified over invalid oaths.
Several lines written before the actual interpretation, issued in November 2016, not only spelled out the manner in which officials and representatives should take their oaths – “sincerely” and “solemnly” – but also stipulated that anyone standing for public office should pledge to uphold the Basic Law, before being allowed to run.
The wordings were originally not part of Article 104 of the Basic Law, which states that people only need make an oath when assuming office.
Au said the position for returning officers to have the power in question “is even clearer” because of that.
Additional reporting by Jeffie Lam