University of Hong Kong Principal lecturer Eric Cheung said that the disqualification of democracy activist Agnes Chow from the March Legislative Council by-election race does not comply with procedural justice. He added that the government’s decision to ban her could have “far-reaching implications” for elections in general.

HKU legal scholar Eric Cheung. File

Chow’s party, Demosisto, advocates “self-determination” for Hong Kong people. On Saturday, election officers rejected Chow’s candidacy, saying she “cannot possibly comply” with electoral laws after promoting or advocating notions of self-determination. In a Saturday press release, it said that the idea – and changing the city’s system by a referendum that includes an option of independence – was “inconsistent with the constitutional and legal status of the HKSAR.”

‘Very ridiculous’

Speaking to HKFP on Saturday, Cheung questioned whether the returning officers – civil servants who oversee elections – had the power to carry out such political screenings: “It does not comply with even the most basic procedural justice and natural justice principles, as she did not ask Chow to explain her stance and merely checked the group’s past record in deducing that she did not uphold the Basic Law – notwithstanding that she already signed the declaration. This is the biggest problem.”

Election hopefuls must sign a declaration stating that they will uphold the Basic Law and pledge allegiance to the Special Administrative Region. Chow signed the agreement and has denied she is pro-independence.

“Whether you uphold the Basic Law and pledge loyalty to the Hong Kong government — these are very broad and general terms and there could be different interpretations,” Cheung said. “If [the understanding] is different to the government and, after reviewing my past speech, they say that I do not uphold the Basic Law and do not allow me to run — that is very ridiculous.”

Interview: Pro-democracy by-election candidate Agnes Chow: who is she and why does she want your vote?

“And if one doesn’t accept the National People’s Congress Standing Committee’s authority — and there are many of of these individuals — does this mean I do not accept the Basic Law, and does this mean that I can’t run for election?”

Agnes Chow shows her election race disqualification notice to reporters on Saturday. Photo: In-Media.

Cheung said that the decision also means that a returning officer could determine that one is not loyal based on their past Facebook records, their interactions with other foreign organisations, the passports they once held, their associations with certain groups or any other public comments they made.

He said that the level of due diligence taken by a returning officer — such as how deeply they checked a candidate’s background, and whether they checked at all — would also come into play.

Cheung said that once returning officers have such powers, it could have “far-reaching implications” for elections, as a high level officer could arbitrarily decide whether a person can run. It impacts not just the March by-election, but also future legislative and chief executive elections, he added.

Chow has said that she will remain in the party despite the ban. The democrats’ have agreed to field Southern District Councillor Au Nok-hin as their Hong Kong Island constituency candidate instead.

Oath taking saga

Chow is not the first to face disqualification. Since the 2016 legislative election, 12 Hongkongers have been banned from standing or disqualified from the legislature after being democratically elected.

The March by-elections are taking place to replace four lawmakers who were ousted by courts over their oath-taking. Six were disqualified by the courts in total, but two appeals lodged by Lau Siu-lai and “Long Hair” Leung Kwok-hung have yet to be completed.

In the 2016 legislative race, election officers barred five contenders from running because they did not accept that they would “uphold the Basic Law” – a proviso for entering the race. Candidates were also asked to sign pledges in which they promise to uphold the mini-constitution and pledge allegiance to the Hong Kong Special Administrative Region.

Convener of the pro-independence Hong Kong National Party Chan Ho-tin filed an election petition against the electoral officer’s apparent power to disqualify candidates after his bid was rejected in 2016. The hearing was completed last May, but the High Court has still not delivered a verdict on the matter. Edward Leung, then-spokesperson of localist group Hong Kong Indigenous, and advocate of Hong Kong’s return to the United Kingdom Alice Lai both also filed election petitions after they were barred from running.

The pro-democracy camp is organising a rally outside government headquarters at 5pm on Sunday.

Karen is a journalist and writer covering politics and legal affairs in Hong Kong for HKFP. She has also written features on human rights, public space, regional legal developments, social and grassroots activism, and arts & culture. She is a BA and LLB graduate from the University of Hong Kong.