A High Court on Tuesday dismissed the legal challenge filed by disqualified candidate Andy Chan Ho-tin, founder of a separatist party, over a returning officer’s decision to reject him from the 2016 Legislative Council election.
The verdict is city’s first one on an election petition stemming from the 2016 LegCo polls.
The judge dismissed Chan’s petition; the returning officer’s decision was ruled as reasonable and, with no material irregularities, all people in the New Territories West Geographical Constituency were duly elected.
Chan, who filed his petition in September 2016 after the election in New Territories West, held the view that the returning officer had no power to make the disqualification decision since he had signed the required documents. Thus the election result was invalid, Chan held.
Judge Thomas Au Hing-cheung wrote in the judgment that even if signing the nomination form, pledging to uphold the Basic Law and pay allegiance to the Hong Kong Special Administrative Region is a formality requirement under the Legislative Council Ordinance, the returning officer is still fully entitled to make the decision based independently on the Basic Law, the SAR’s constitutional document.
Au referred to the Interpretation of the Basic Law issued by the National People’s Congress Standing Committee, the national legislature, in November 2016, saying candidates standing for LegCo election must “genuinely and truly” intend to uphold the Basic Law and pledge allegiance to the HKSAR.
Hence Chan, even though signing the declaration form, should be disqualified under the Basic Law as he backed independence of HKSAR and abolition of the Basic Law even after submitting the declaration form, according to Au.
The SAR government welcomes the court’s decision. In a statement issued on Tuesday, a government spokesman said the verdict confirms the returning officers’ power to determine whether the declaration made by a person is genuine, and to decide whether the nomination is valid.
Reiterating the unconstitutionality of advocating “independence of the HKSAR”, the SAR government said it will support returning officers to continue to verify nominations in accordance with the law and all relevant information to make sure elections are conducted in an open, honest and fair manner.
Barrister and legislator Priscilla Leung Mei-fun echoed the government’s opinion. She said the verdict provided a clear legal precedent for future electoral disputes under the common law system in Hong Kong.