Hong Kong district council election
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Joshua Wong said he did not support Hong Kong independence and only supported a non-binding “self-determination” referendum on the city’s future within the current constitutional framework. Photo: K.Y. Cheng

Decision to ban Hong Kong pro-democracy activist Joshua Wong from district council elections may face challenge in court

  • Legal scholars say the power to disqualify candidates was ‘broad’ and appeared ‘unchecked’
  • Eric Cheung, law lecturer at HKU, says different outcomes in Eddie Chu and Joshua Wong’s cases show arbitrary power was vested in returning officers
The banning of Joshua Wong Chi-fung from the coming district council elections may have put an end to the exchange of words between the young activist and two electoral officials, but the decision is all but certain to face a challenge in the courts, analysts said.

Wong, the only hopeful to have been disqualified, has pledged he will lodge an election petition after the polls on November 24. His case could become the third case involving pro-democracy candidates at various levels of courts.

Legal scholars said the power to disqualify candidates was “broad” and appeared “unchecked”, given that Wong had made it clear that he and his party Demosisto would not support the city’s independence even as an option.

But barrister Ronny Tong Ka-wah, an adviser to city’s leader Carrie Lam Cheng Yuet-ngor, defended returning officer Laura Liang Aron’s decision. Tong said Wong’s party had not proved that its members would uphold the Basic Law, the city’s mini-constitution. He said if Wong wanted to run for public office, one option for him was to quit Demosisto.

A key point of contention in Wong’s case was the notion of a “non-binding referendum”.

In three lengthy replies, Wong said he did not support Hong Kong independence and only supported a non-binding “self-determination” referendum on the city’s future within the current constitutional framework.

The issue of a referendum, according to a legal source, was deliberately quoted from a landmark ruling, in which the court ruled in favour of fellow Demosisto member Agnes Chow Ting’s election petition.

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Justice Anderson Chow at the time ruled that while “self-determination” was unconstitutional, the applicant, Agnes Chow, was only supporting a “watered-down” version of it to “forge public opinion and put pressure” on Beijing and Hong Kong.

However, even though Wong apparently changed his stance and said he only supported the non-binding referendum, electoral officials still doubted his statement.

Returning officer in charge Aron accused him of not “categorically distancing himself” from Demosisto’s advocacy, and said part of Wong’s reply was misleading or not genuine.

Eddie Chu has been cleared to run in the district council elections. Photo: Dickson Lee

Aron also said having independence as an option even in a non-binding referendum would run against the Basic Law, because candidates are supposed to “support and promote” the constitutional document.

This position stood in stark contrast with the handling of the candidacy of Eddie Chu Hoi-dick, who was cleared to run, after replying with a simple “yes” when asked if he would renounce the advocacy of “self-determination”.

Last December, Chu was banned from running in a rural village representative election in Yuen Long, after being accused of “implicitly” maintaining his support for the city’s self-determination.

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Cora Chan Sau-wai, constitutional law scholar at the University of Hong Kong, said it was too broad to ban candidates based on them offering a non-binding option.

“It seems any words of actions that propel independence is against the spirit of the Basic Law. But that is not the legalistic or ordinary view of the law,” Chan said.

Barrister Ronny Tong said Joshua Wong’s party Demosisto had not proved that its members would uphold the Basic Law. Photo: Xiaomei Chen

Surya Deva, an associate professor at the law school of City University, also said the returning officer should judge from Wong’s intention when he filed the application, instead of judging from past instances.

Eric Cheung Tat-ming, a principal lecturer in law at the University of Hong Kong, said the different outcomes in Chu and Wong’s cases showed arbitrary power was vested in returning officers. “The higher courts should clarify when and how could returning officers exercise that power,” he said.

Chan added another key issue the court would need to clarify was whether electoral officials could disqualify candidates in district council elections at all.

Under Article 104 of the Basic Law, only the chief executive, the members of the Executive Council and the Legislative Council and judges have to pledge allegiance to the Hong Kong Special Administrative Region.

But Tong, who is also a barrister, said although the matter would likely end up in court, past rulings that already backed local election rules were constitutional, clearing the way for any legal challenge.