Legal tangle after Chow decisionLocal | Jane Cheung 4 Sep 2019
A court ruling on Demosisto's Agnes Chow Ting's successful election petition actually favors the administration as it has reaffirmed a returning officer's power to screen candidates, a legal expert says.
Eric Cheung Tat-ming, a principal lecturer in the University of Hong Kong's faculty of law, said the court also confirmed that supporters of self-determination do not genuinely bear allegiance to the Basic Law.
"I don't think returning officers have the power to judge whether a candidate genuinely upholds the Basic Law," Cheung said yesterday. "We should leave the case to the Court of Final Appeal for an authoritative ruling."
High Court justice Anderson Chow Ka-ming on Monday ruled that Agnes Chow was not given a chance to respond to allegations that led to her disqualification from a 2018 by-election in Hong Kong Island to replace Demosisto's Nathan Law Kwun-chung.
But it means the back-up candidate for the pro-democracy camp, Au Nok-hin, who eventually won, will be unseated as the judge ruled no one was elected in the by-election.
Chow said yesterday she would not rule out appealing her election petition despite winning it, saying the ruling was not clear on the limits of advocacy for self-determination.
She cited the written judgement that independence and viewpoints similar to self-determination are not in line with the Basic Law.
However, she added, the court did not state which version of the self-determination doctrine is against the Basic Law, adding that it has not been defined clearly.
"The outcome showed that in future elections returning officers will at least have to ask candidates about their political stance, which would make them very busy," she said. "At least it has brought some impact to the procedures."
Speaking alongside Chow, Au said her win may affect the results of other election petitions, including that of ousted legislator Lau Siu-lai.
It could, for instance, lead to pro-administration legislator Rebecca Chan Hoi-yan, who won in the by-election replacing Lau, being unseated.
Au said he is considering filing an appeal, adding that he wished higher courts would give a ruling on whether returning officers have the right to disqualify candidates.
But Au's fate as a lawmaker could hinge on whether an appeal is filed by him or by Chow.
According to the Legislative Council Ordinance, if a person who was ruled to be not duly elected files an appeal then the person can remain a lawmaker until the end of all court procedures.
If the Department of Justice filed an appeal for then-returning officer Anne Teng Yu-yan, who was one of the two respondents in Chow's action, Au would likely lose his legislative position unless the department applied for a suspension order.
If Chow made the appeal he would be unseated regardless.
"My lawmaker office is counting down its days," Au said. "But it's not my major concern to keep my seat. Fighting for justice is my top priority."