The High Court ruled on Tuesday that a returning officer’s decision to disqualify Andy Chan Ho-tin, a Hong Kong independence advocate, from joining the Legislative Council election held in September 2016 was justified.
A judge dismissed China’s petition to overturn the returning officer’s decision, and ordered him to pay related legal costs.
Chan, convenor of the pro-independence Hong Kong National Party, filed a court challenge after his bid for a Legco seat in the New Territories West constituency was turned down by the officer, as the officer felt that Chan had no intention to uphold the Basic Law even though he had signed a declaration to do so.
In his ruling Tuesday, Justice Thomas Au Hing-cheung said a returning officer has the statutory power to look beyond formal compliance in application forms in deciding the candidacy of election applicants, the Hong Kong Economic Journal reports.
While Chan argued that he had not been given the chance to explain, the judge said the returning officer did ask Chan several questions, but Chan only replied that he did not understand the legal basis behind the questions
By common sense, the returning officer asked Chan questions, definitely because the latter’s advocacy of Hong Kong independence was contradictory to the “one country, two systems” principle, and because his demand for abolishing the Basic Law is also contradictory to upholding the law.
As such, according to Au, it is not that Chan and his legal team did not understand legal basis behind those questions asked by the returning officer, but just their legal viewpoints are different.
The judge also pointed out that upholding the Basic Law means one not only has to obey it but should also support and promote it. The ideology of pushing for Hong Kong independence definitely goes against upholding the Basic Law, he said.
As to the point that the Electoral Affairs Commission Ordinance stipulates a returning officer should take the nominations advisory committee’s opinions into consideration when deciding candidates’ qualifications, Au said that does not mean a returning officer is compulsorily required to seek opinions but means he or she can take such opinions for reference when they are offered.
Citing Article 104 of the Basic Law, which says lawmakers, when assuming office, must swear to uphold the Basic Law of Hong Kong and swear allegiance to the HKSAR, in the ruling, Au said this is also a premise for running in an election. Therefore, signing the declaration would not only be a formality but the candidate is also required to make a genuine and truthful declaration of his or her intention to uphold the Basic Law and swear allegiance to the HKSAR.
Au also stressed if signing the declaration were only for satisfying the formality requirement, it would lead to absurd results.
Following the ruling, the government said it welcomes the decision, adding that Hong Kong independence is inconsistent with the constitutional and legal status of the HKSAR as stipulated in the Basic Law, as well as the established basic policies of China regarding Hong Kong.
Expressing dismay at the overturning of his petition, Chan said he will seek legal opinions before deciding whether he will file an appeal.
Although admitting the chances for him to win an appeal are slim, Chan said he may still make such a move, saying the issue is not about him personally, but all those who support self-determination of Hong Kong so that all people have the right to vote and the right to stand for election.
Chan added that he will not stand for any election henceforth unless the system becomes fair and open.
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