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Legislative Council by-election 2018

Demosisto party candidate Agnes Chow launches High Court bid to have Hong Kong election ban overturned on Bill of Rights grounds 

Joshua Wong’s comrade-in-arms was bidding to become city’s youngest ever lawmaker, before her disqualification

PUBLISHED : Tuesday, 08 May, 2018, 3:02pm
UPDATED : Tuesday, 08 May, 2018, 10:37pm

Young Hong Kong democracy activist Agnes Chow Ting went to the High Court on Tuesday to challenge her disqualification from the Legislative Council’s March by-elections.

After filing her petition, the 21-year-old Baptist University student said the court needed to safeguard Hongkongers’ rights when they are under threat.

“The most important issue was not whether I can run for future elections, it was whether Hong Kong people’s most basic rights and freedoms can be protected ... If we don’t with different ways try to do Hong Kong justice, there could be more and more political suppressions,” she warned.

Chow, Occupy student leader Joshua Wong Chi-fung’s comrade-in-arms, was seeking to become the city’s youngest ever lawmaker by contesting a seat vacated by party chairman Nathan Law Kwun-chung. Law was disqualified last year for an improperly taken oath of office

Chow’s candidacy was invalidated in January by returning officer Anne Teng Yu-yan on the grounds that the doctrine of “democratic self-determination”, as promoted by Demosisto, was inconsistent with the “one country, two systems” principle enshrined and implemented under the Basic Law, the city’s mini-constitution.

Teng noted Chow, a founding member of Demosisto, had declared her political affiliation with the party in her nomination form, showing she continued to subscribe to the doctrine.

However, in the petition filed at the High Court, Chow’s legal team, led by former Bar Association chairman Paul Shieh Wing-tai, argued Teng’s decision was “vitiated by procedural irregularity and by infringement” of Chow’s right to be heard. 

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The move to bar Chow was a breach of Article 21 of the Hong Kong Bill of Rights, which states every resident shall have the right to be elected, without unreasonable restrictions or distinction of any kind, such as by political opinion, they added.

The legal team argued Chow should be considered as having fulfilled the requirements to become a candidate, as she signed and submitted a form declaring she would uphold the Basic Law.

There were “material irregularities” in the returning officer’s decision to approve Law’s candidacy for the 2016 Legco elections, and disapprove Chow’s, the lawyers suggested.

Chow added on Tuesday it was worrying that authorities seemed to be keen on tightening election rules, especially after Tam Yiu-chung, Hong Kong’s sole delegate to China’s top legislative body, said in March that those who call for an “end to one-party dictatorship” in China risk disqualification from elections. 

Demosisto’s platform had called for a citywide referendum on its political future, including the option of independence from China. But Chow insisted that her party “has not been advocating” Hong Kong independence.

In February, the High Court made a landmark ruling against pro-independence activist Andy Chan Ho-tin, which determined that returning officers could bar candidates because of their political views – but only when presented with “cogent, clear and compelling” evidence that entrants would not uphold the Basic Law.

Chow’s legal team argued she should be given a “reasonable opportunity” to explain herself, before Teng determined “whether there were such cogent, clear and compelling materials” to support the invalidation.

Chow was not given that opportunity, the lawyers added.

In November 2016, Beijing made an interpretation of the Basic Law that made improper oath-taking, and failure to accept Hong Kong as an inalienable part of China, punishable by disqualification.

It led to Law, and five other pro-democracy lawmakers, being disqualified for failing to take their oaths of office properly, and by-elections were held on March 11 to fill four of the six seats vacated.

Au Nok-hin, a localist supported by Demosisto, took Chow’s place to represent the opposition camp in the race, and won.

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In filing the petition, Chow’s lawyers asked the court to decide if Au was duly elected on March 11. If he was not duly elected, the court should decide whether Chow “or some other persons” were duly elected in his place.

Au said he respected the 21-year-old’s decision “to exercise her legal rights”.

However, he said it was too early to say whether he would seek to reclaim his seat, should the court rule in Chow’s favour.