Setback to legal challenge against new Hong Kong election rule
High Court decides against immediate hearing on requirement that Legco hopefuls sign declaration stating city is part of China, while Legco president warns against barring candidates
The High Court on Wednesday refused to immediately hear the first legal challenge to a controversial new electoral rule targeting advocates of independence, even as the head of the legislature warned the government against shutting out candidates.
High Court judge Mr Justice Thomas Au Hing-cheung said he saw no urgency in dealing with pan-democrat and localist hopefuls’ applications for a judicial review before the nomination period for September’s Legislative Council elections ends on Friday.
One application was filed by independence advocate Edward Leung Tin-kei, who is running in New Territories East, and the other was filed by two pan-democrats, Avery Ng Man-yuen and Chan Tak-cheung.
Both are challenging the Electoral Affairs Commission’s legal right to make all Legco candidates sign a new form – a supplement to the standard declaration – to acknowledge three parts of the Basic Law that state Hong Kong is an inalienable part of China.
The challengers argue that the commission has acted beyond its powers, and accuse the government of political censorship.
Explaining his move, Au noted that the commission had yet to decide whether to accept Leung’s nomination. Should his nomination be rejected, Leung could still mount a challenge after the election against the commission, the judge said.
“A number of [aspirants] had also had their nominations validated without submitting the confirmation forms,” Au added. He was referring to some of the 20 or so hopefuls, mostly from the pan-democratic camp, who did not sign the new confirmation forms, being told their nominations were accepted by the commission.
But the judge did not clarify whether their candidacies would be jeopardised if they chose not to sign the new form. Au said the court would decide later whether it would formally hear the judicial review, without specifying a date.
University of Hong Kong principal law lecturer Eric Cheung Tat-ming said the court did not see the urgency because no candidates had yet been invalidated as a result of the new rule. He said even if the case was heard before the end of the nomination period, a decision was unlikely before Friday, and when candidates in question were rejected they might launch other judicial challenges later anyway.
Cheung said if the court went on to hold that the returning officers had exceeded their power, it could mean a re-election.
Meanwhile, the election watchdog reiterated it had the legal power to ask aspirants to provide further information.
Even before the court decision, Legco president Jasper Tsang Yok-sing warned the government against banning someone simply over the new form.
“If we open the floodgate for lawmakers to promote independence, it will be dangerous for Hong Kong’s development,” Tsang said.
“But I think we also need to stand firm on our rule of law; if the government does things that make people feel that our laws can be set aside, and that people can be barred from running, the cost would be too big for us.”
Localist candidates such as Leung have been asked by returning officers to further clarify their stance on Hong Kong independence after submitting their nominations.
Outside court yesterday, Leung said if his nomination was rejected his only option would be through an election petition, which could take years. “If the returning officer rejects nomination … [the candidate] would not be able to stand for election in September,” he said.
When asked whether he would sign the confirmation form, Leung said he was undecided.
Ng, of the League of Social Democrats, insisted he would refuse to sign the form when submitting his application on Thursday to run in Kowloon West.