Pro-independence activist Andy Chan Ho-tin has lost his bid to overturn the 2016 Legislative Council election, in which he was barred from running.
Mr Justice Thomas Au ruled that a returning officer can examine matters beyond the formal compliance of the nomination form, and candidates should be given reasonable opportunity to respond to any materials raised by returning officers, but a returning officer should only conclude that candidates do not have intentions to uphold the Basic Law or pledge allegiance to the HKSAR at the time of nomination if there is “cogent, clear and compelling evidence.”
Chan lodged a petition to nullify the election in 2016, but the case was only heard in May last year owing to legal aid issues. The judgment was handed down on Tuesday, nine months after the hearing.
To run in the New Territories West constituency, Chan signed a declaration in the nomination form stating that he would uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region. However, he did not sign an additional confirmation form – separate to the nomination form – which asked for the same pledge.
He was barred from entering the election race by a returning officer – district officers who temporarily oversee administrative electoral affairs. The officer asked Chan if he would maintain his pro-independence position, which the officer said Chan advocated based on news reports and other sources. Chan did not reply.
‘Cogent, clear and compelling evidence’
In a 104-page judgment handed down on Tuesday, Court of First Instance judge Thomas Au ruled that the Electoral Affairs Commission had the power to issue the confirmation form requesting further information from a candidate. The returning officer, therefore, is “entitled to take into account a candidate’s failure to return the Confirmation Form,” Au said.
Au also said that – even without the form – a returning officer is entitled to ask whether the candidate understands the relevant Basic Law articles, and that there is criminal liability for making false declarations under the Electoral Affairs Commission Regulation. The officer can examine matters beyond the formal compliance of the nomination form, he said.
The judgment also confirmed that Beijing’s 2016 interpretation of the Basic Law also applied to standing for election, and Legislative Council candidates must therefore “genuinely and truly uphold the Basic Law and swear allegiance to the HKSAR of the PRC.” The declaration requirement was hence a constitutional requirement for election, he said.
Judge Au further added that a signed declaration should constitute strong objective proof that there is such an intent to uphold Basic Law and pledge allegiance to the government. Only where there is “cogent, clear and compelling evidence” that the candidate does not have such intentions – notwithstanding the signed declaration – could the returning officer conclude otherwise.
Au also said: “Needless to say… fairness requires that generally the Returning Officer should give a reasonable opportunity to the candidate to respond to any materials that the Returning Officer says are contrary to an intention to carry out the obligations under the Declaration.”
The judge found that Chan and his party had indeed advocated for abolishing the Basic Law “when seeking to establish an independent Hong Kong as a republic” – which would be, in any reasonable view, the “very antithesis” of an intention to uphold the Basic Law.
The Hong Kong government welcomed the judgment which, it said, confirmed the power of returning officers to examine candidates’ nominations, as to whether they truly believe in the declaration to uphold the Basic Law and pledge allegiance to the HKSAR.
‘China’s despotic sovereignty’
A statement issued by Chan’s Hong Kong National Party said Chan and his legal team will consider whether to appeal: “In past years, the rulings made by the courts of Hong Kong in regards to various political cases have already demonstrated that our judicial courts have submitted to China’s despotic sovereignty, and no longer the defender of the civilised Rule of Law,” it said.
“But no matter and whatever the outcome, the Hong Kong National Party calls for our supporters and the like-minded to not harbour any hope for the current Hong Kong judicial system. For as long as we are under China’s colonial rule, the Rule of Law will never be fully realised.”
The Basic Law interpretation issued by Beijing in November 2016 – after the election – stated that upholding Basic Law and pledging allegiance to the Hong Kong SAR were “legal requirements and preconditions for standing for election.”
Including Chan, six were barred from running in the Legislative Council election in 2016 for their political views.
Edward Leung, then-spokesperson of localist group Hong Kong Indigenous, and Alice Lai, an advocate of Hong Kong’s return to the United Kingdom, also filed election petitions after they were barred from running. They have yet to be heard.
Six elected lawmakers were disqualified over their oaths of office last year last year. Three more activists – Agnes Chow, Ventus Lau and James Chan – were barred from running in the by-election in March for their political views.
Additional Reporting: Karen Cheung.
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