Agnes Chow prevails on poll petition but says only 'partial' win

September 03, 2019 15:04
Agnes Chow speaks to the media outside a court on Monday after a judge ruled that she had been illegally prevented from running in a Legco by-election last year. Photo: HKEJ

A young pro-democracy activist who was barred last year from running for a Legislative Council by-election has won a legal challenge against the decision, but said she remains doubtful if her case would set a precedent and benefit other anti-establishment candidates in future elections.

Speaking to media outside the court on Monday, Agnes Chow Ting, 22, a founding member of the political party Demosistō, described her victory as partial because, she said, she won the election petition only “because of procedural justice”.

Chow pointed out that the judgment reaffirmed that returning officers have the power to “decide a candidate’s political stance and to disqualify their basic right of getting involved in elections.”

Despite getting a favorable ruling this time, Chow said she believes it would be difficult for anyone who advocates independence or self-determination to join future elections.

On Tuesday, Chow added that Demosistō members may still be disqualified in future elections, since the judgment reaffirms the power of the returning officer to decide a candidate's political stance.

Asked if she would run again, either for the District Council elections scheduled for Nov. 24 or for the Legco elections next year, Chow said she has not made any decision yet but stressed it is Demosistō ‘s belief that advocating self-determination is Hongkongers’ basic right.

Chow, a former standing committee member of Demosistō that advocates self-determination for Hong Kong people, registered in January 2018 to join the Legco by-election for a seat in the Hong Kong Island geographical constituency as a candidate representing the pan-democratic camp.

Several days later, she was notified by Anne Teng Yu-yan, returning officer of the Hong Kong Island constituency, that her nomination as a candidate in the by-election scheduled for March 11 was invalid because her advocacy of self-determination for Hong Kong is "contrary to the content of the declaration that the law requires a candidate to make to uphold the Basic Law and pledge allegiance to the HKSAR." 

After Chow’s substitute, Au Nok-hin, a member of the Southern District Council, won the by-election for the pan-democratic camp, she filed an election petition in May last year at the High Court appealing against her ban.

Delivering a verdict on Monday, judge Anderson Chow Ka-ming said there was a “breach of the principle of natural justice or procedural fairness” as the returning officer disqualified Chow without offering her a reasonable opportunity to respond to doubts about her political stance, the Hong Kong Economic Journal reports.

The right to be heard is “an important procedural safeguard which should not be lightly displaced" and there was no dispute that the returning officer “did not give Ms Chow any reasonable opportunity to respond to the materials relied upon by her in reaching the decision that her nomination was invalid” even though the officer believed there was clear and convincing evidence showing that Chow did not sincerely uphold the Basic Law and pledge allegiance to the HKSAR, according to the judge.

The judge added that he could see the reason why the returning officer was in such a hurry to invalidate Chow’s nomination.

As such, the judge nullified the result of the March 11 by-election in light of the election petition win, and ruled that Au was not duly elected.

Following the announcement, a spokesman for the Constitutional and Mainland Affairs Bureau said the government will study the ruling and decide on follow-up action after consulting legal advice.

– Contact us at [email protected]

TL/JC/RC