image image

Legislative Council by-election 2018

Hong Kong localist Ventus Lau launches legal challenge against by-election ban at High Court, and legal aid is helping to fund it

He was barred by returning officer for expressing pro-independence views on Facebook a year before trying to stand in vote

PUBLISHED : Wednesday, 16 May, 2018, 7:31am
UPDATED : Wednesday, 16 May, 2018, 9:12am

A candidate on a localist platform has launched a legal challenge against the government’s decision to bar him from contesting the Legislative Council by-election in March, arguing that it was wrong to use his past remarks on Facebook to prove he supports independence.

The election petition, filed at the High Court on Monday by Ventus Lau Wing-hong from Community Network Union, came after a similar move by Demosisto’s Agnes Chow Ting, who was also barred by the electoral office from running.

“To disqualify the present me based on past remarks was unreasonable; political stances can change over time,” said Lau, 24, who has been granted legal aid to fund the petition.

Central to both Lau and Chow’s claims was the power of the returning officer to determine candidates’ stances on independence and political affiliation, when both were not given a chance to explain themselves.

Legal scholars have argued that the disqualification decision contradicted the High Court’s ruling in February in the case of pro-independence activist Andy Chan Ho-tin.

Then, the court ruled that returning officers could bar candidates because of their political views, but only when presented with “cogent, clear and compelling” evidence that they would not uphold the Basic Law, the city’s mini-constitution.

I didn’t have a hand in activist Agnes Chow’s election ban, says Hong Kong leader Carrie Lam

In Lau’s case, the former Chinese University graduate was prevented from contesting a New Territories East constituency by returning officer Amy Chan Yuen-man for his previous pro-independence remarks on Facebook.

Citing several remarks Lau had made more than a year before the by-election, Chan challenged Lau’s claims that he had given up his stance on Hong Kong independence “out of political reality”.

She said Lau had displayed “an apparent reluctance to denounce … sustained stance in favour of independence of Hong Kong”.

Even if the change of position is based on political reality, it does not mean that Lau was not genuine
Ventus Lau’s petition to the High Court

In a submission to the court, Lau’s legal team said Lau had already signed a declaration committing to uphold the Basic Law, as part of the legal requirement for candidates to stand, and made it clear to the media he no longer supported Hong Kong independence.

“Even if the change of position is based on political reality, it does not mean that he [Lau] was not genuine,” the localist’s lawyers wrote in the petition.

Hong Kong election officials can block candidates based on political views but must ensure clear evidence, court rules

His legal team also slammed the returning officer for being “irrational and wrong” to take into account disqualified lawmaker Sixtus Baggio Leung Chung-hang’s support for him, saying it amounted to being “guilty by association”.

Lau also criticised Chan for failing to disclose the Department of Justice’s “secret advice” before making the disqualification decision.

“Based on the principle of separation of powers, the administrative branch including the DOJ, should have minimal involvement in the election process,” he said in his submission.

If Lau succeeds in his petition, it could trigger another by-election in New Territories East. This would have a bearing on Neo Democrats lawmaker Gary Fan Kwok-wai, who won the seat in March.

But Fan said it was Lau’s right to challenge the decision. He added he did not believe candidates should be barred from contesting in polls because of what they said previously or their political beliefs.