Hong Kong Law & Crime Politics & Protest

There are limits to election rights, says gov’t lawyer in pro-independence party’s legal challenge

Senior counsel for the government Benjamin Yu told the High Court on Thursday that there are limits to constitutionally-stipulated election rights, as pro-independence figure Andy Chan Ho-tin attempted to overturn a government decision last July to bar him from running for Hong Kong’s legislature.

Yu was responding to the assertion by Chan’s counsel that the Electoral Affairs Commission’s decision to disqualify him would run against Article 26 of the Basic Law, which states that Hongkongers have the right to vote and the right to be elected.

Chan Ho-tin

Andy Chan Ho-tin. Photo: InMedia.

Chan is the convener of the pro-independence Hong Kong National Party, established only last March. After he and five others were disqualified by the government’s returning officers from running in the Legislative Council elections, he filed for a judicial review last September.

Senior counsel Yu said on Thursday that the returning officer must not only take election rights into account when considering an individual’s candidacy.

He said that Article 1 of the Basic Law – which states that Hong Kong is an inalienable part of China – must also be considered, reported local newspaper Ming Pao.

Yu added that there is a “legitimate aim” to delineating limits on election rights in Hong Kong. In this instance, allowing an individual who does not uphold the Basic Law to run as a candidate would weaken the fairness of the election.

Sovereignty pledge

Last summer, the Electoral Affairs Commission introduced a confirmation form within its application for candidates in the legislative election, asking them to pledge to uphold China’s sovereignty over Hong Kong. Chan did not sign the form but signed on the same declaration on the nomination form.

Yu told the court that prohibiting individuals who make false declarations from running in the election would prevent their criminal convictions and possible disqualifications in the future.

He said on Wednesday that allowing Chan to run in the election – given his stance against the Basic Law – would be a waste of public resources and against the public interest.

high court

File photo: HKFP/Ellie Ng.

Representing Chan, senior counsel Gladys Li responded that the confirmation form is not a legally-stipulated prerequisite for running in the election.

On Tuesday, she had said that promising to uphold the Basic Law did not mean agreeing with all of its provisions, because otherwise society would not see any progress.

See also: Gov’t was unfair to ban pro-independence party leader from running for election, court told

The hearing ended Thursday afternoon, and a verdict will be handed down later.

There are limits to election rights, says gov't lawyer in pro-independence party's legal challenge