Hong Kong Basic Law

Hong Kong National Party’s Andy Chan drops appeal against election ban after failing to get legal aid for court fight

Separatist cannot afford to continue challenge against right of returning officers to stop candidates standing in local elections

PUBLISHED : Thursday, 13 September, 2018, 7:03am
UPDATED : Wednesday, 03 October, 2018, 1:28pm

A separatist whose party is facing a government ban has dropped his appeal against the decision to ban him from running in 2016 Legislative Council election, because he cannot afford to fight on.

Hong Kong National Party (HKNP) founder Andy Chan Ho-tin told the Post on Wednesday he had withdrawn his application to bring his case to the city’s top court, over the High Court’s ruling on his election petition in February.

The ruling, by Justice Thomas Au Hing-cheung, affirmed the position that election officials could ban candidates from standing if presented with “cogent, clear and compelling” evidence that they would not uphold the Basic Law, Hong Kong’s mini-constitution.

Returning officers, must however, give candidates a “reasonable opportunity” to respond before the ban becomes final.

Chan is also battling a proposed ban of nationalist party. Hong Kong police have accused the HKNP of posing an “imminent threat” to national security and public order. Chan has to submit his reply to the ban to the security minister by Friday.

In banning Chan two years ago, the returning officer from the Electoral Affairs Commission said the activist “advocates, supports and promotes Hong Kong independence”, and hence “does not in fact uphold or intend to uphold the Basic Law”.

Election officials can block candidates based on political views, court rules

Chan, who initially filed the appeal this April, said he had not been granted legal aid, and this would mean having to shoulder a huge financial burden if the legal battle wore on.

“The difficult part is that we have to seek two approvals, first from the Court of Appeal, then from the [appeal committee of the] Court of Final Appeal to open the [appeal] case,” Chan said.

“Failing in any one of the steps, [means] this case cannot go through, but it may cost hundreds of thousands of dollars to get to the appeal court.”

Although Demosisto’s Agnes Chow Ting launched a similar legal challenge after being barred from running in this year’s Legco by-election, legal sources said no date has been fixed for her case, and it was common for procedure to take up to 1½ years to complete legal proceedings.

Chow was barred from running after a returning officer found that her party, Demosisto, had called for “self-determination” for the city, rendering her ineligible under rules to curb independence advocacy.

Chan’s withdrawal, and the uncertainty over Chow’s application, mean February’s ruling would be binding for upcoming elections. That includes the Legco by-election to fill one of the seats left vacant by six of the disqualified lawmakers in November, and the District Council elections in 2019, unless another similar legal challenge against it wins.

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Lau Siu-lai, one of the six lawmakers unseated for taking an improper oath, is considering a comeback in the November by-election, but acknowledged it remained uncertain if she could run, even she made it clear she “did not support independence”.

Chan conceded his withdrawal meant returning officers could “politically censor” candidates, based on their political views, at least in the short term.

“I could only leave it to others, including Agnes to challenge this ruling,” Chan said.

Lawrence Lok Ying-kam SC, a long-time former member of the Nomination Advisory Committee, who advised the independent electoral commission on election laws and procedure, said the government should review existing laws to clarify the power of returning officers in reviewing candidates’ political views.

“Now the eligibility issue is only handled by returning officers who are civil servants, at least it would be better to find a High Court judge to make the call,” he said.

The constitutional minister Patrick Nip Tak-kuen said in February that the government would review existing electoral laws following the High Court ruling, but government sources previously said no plan was imminent.

A spokeswoman for the Constitutional and Mainland Affairs Bureau declined to comment when asked if it was considering revisiting the legal position, but said the government “supports returning officers’ right to continue to determine” candidates validity, “so that elections will be conducted in compliance with the Basic Law and other applicable laws”.

The Registration and Electoral Office said returning officers “solely make the independent decisions” on the eligibility of candidates.