Election bans must be legally justified
- Activist Agnes Chow Ting won High Court appeal after returning officer failed to give her opportunity to explain her stance
The government bid to block pro-independence figures from standing for elected office has suffered a setback after the ban on Agnes Chow Ting in a Legislative Council by-election last year was overturned by the High Court. Although it appears to be more of a procedural flaw on the part of the returning officer rather than a lack of legal basis, it shows that any move to reject a candidacy must follow due process. Barring the possibility of a further appeal, the blunder also means the pro-democracy winner in the polls will be removed and tens of millions of dollars spent on another by-election to return a new lawmaker to serve out the term that ends next July.
Election ban on Hong Kong democracy activist Chow overturned
In question is whether electoral rights can be deprived on the grounds of one’s political views. In line with another court decision upholding the ban on pro-independence activist Andy Chan Ho-tin last year, Mr Justice Anderson Chow Ka-ming ruled that a returning officer can reject a candidate if there is “cogent, clear and compelling” evidence that he or she is not genuine when signing a declaration to uphold the Basic Law.
Any person, he said, could not genuinely and truthfully intend to uphold the mini-constitution if he or she advocated independence or self-determination, owing to the city being an inalienable part of China under the law. However, returning officer Anne Teng Yu-yan failed to give Chow an opportunity to respond before the invalidation and this was deemed a material irregularity.
The government must be relieved that the legal basis of disqualifying pro-independence candidates has been upheld. The requirement for candidates to pledge allegiance to the Basic Law and Hong Kong Special Administrative Region is seen as an important step in defending Beijing’s red line on national sovereignty and “one country, two systems”. But Chow’s case has raised questions as to whether returning officers have been given sufficient guidelines to handle the task involved. Given it is arguably no different from political screening, there are concerns that returning officers, who are politically neutral civil servants, may feel under pressure when vetting candidates. The electoral rules must not only be justified, but also legally sound.
