Hong Kong localism and independence

Hong Kong bureaucrats should not decide whether candidates can run in election – that’s a job for lawyers, says Bar Association chairman Philip Dykes

City’s top silk suggests taking job away from returning officers would remove suspicion of political interference

PUBLISHED : Monday, 15 October, 2018, 12:42pm
UPDATED : Tuesday, 16 October, 2018, 7:07am

The head of Hong Kong’s representative body of barristers has called for judges or senior lawyers, rather than lower-ranking bureaucrats, to be given the authority to vet election candidates.

On Monday, Bar Association chairman Philip Dykes ramped up criticism of the way in which an electoral official banned an opposition candidate from contesting a by-election next month for a Legislative Council seat, without giving her a chance to argue against her disqualification.

Speaking in a personal capacity, Dykes said the returning officer in question was almost relying on “divination” when he rejected ousted lawmaker Lau Siu-lai’s candidacy last week, on the grounds that she had not given up her stance in favour of self-determination for Hong Kong – a controversial but ambiguous concept amid the crackdown on independence advocacy.

“What’s disturbing about this case is, we understand if candidates are independence advocates, but self-determination? They are not quite the same thing,” Dykes said.

“Self-determination may fall within the context of the [legal] system and ‘one country, two systems’. We have yet to hear the concept explained fully, but it’s not necessarily incompatible with the sovereign state.”

Lau’s campaign to win back the seat she was stripped of in Kowloon West constituency over improper oath-taking last year was abruptly cut short on Friday.

The returning officer appointed by Electoral Affairs Commission said Lau had not “taken any step to disassociate herself” from her earlier political stance.

By-election ban on ousted lawmaker spurs pro-democracy bloc uproar

Citing a High Court ruling in February, that candidates should be give a reasonable opportunity to respond before disqualification, Dykes said Lau’s political stance was not a black and white case.

“What do you mean by disassociate [from the belief]? Do you put an advertisement in the newspaper – ‘I no longer associate myself with what I said in the past’? Going to radio, seeking interviews? That’s why [returning officers] should be able to speak to the candidate to see if you’ve got a point.”

To prevent mistakes in future, Dykes suggested, the electoral authority should instead appoint a judge or a senior lawyer to rule on a candidate’s eligibility.

According to Dykes, this would dispel perceptions of political intervention from the executive branch, as the judges or lawyers could appoint their own legal research and assessment teams.

Lau yesterday indicated her intention to appeal after the November by-election.

After the US State Department expressed concern over the incident, the European Union and Britain on Monday called for the right to stand for election to be respected.

“Barring candidates … because of their political beliefs is in contradiction with the right to stand for election without unreasonable restrictions,” a spokeswoman for the EU’s Hong Kong office said.

Secretary for Constitutional and Mainland Affairs Patrick Nip Tak-kuen told lawmakers that the court ruling had only stated the “general principle” when it came to giving candidates a chance to defend themselves.

It was up to returning officers to judge if they had enough information to make a decision, or if they needed to ask applicants more questions, Nip said.

He also reiterated the government’s tough stance on entry requirements for elections.

Ousted lawmaker Lau Siu-lai says she feels ‘weight of the world’

“Anyone advocating self-determination, Hong Kong independence, or think Hong Kong independence is an option… will not meet the requirements for running to become a lawmaker,” Nip said.

Ronny Tong Ka-wah, a senior counsel and an adviser to the city’s leader, Chief Executive Carrie Lam Cheng Yuet-ngor, also said it was not entirely unfair since the returning officer could objectively decide whether a candidate was sincere about upholding the Basic Law

“Giving Lau a chance to respond would certainly make the matter less controversial, but it does not mean the decision itself was wrong,” Tong said.