Hong Kong Law & Crime Politics & Protest

Pro-independence activist ‘will not run for election again unless it is democratic,’ after losing legal challenge

Pro-independence activist Andy Chan of the Hong Kong National Party says he will not run for election again unless there is a fair, open and democratic poll. On Tuesday, he lost an election petition to overturn the 2016 Legislative Council election, from which he was banned from running.

Chan said the ruling further proved that the “One Country, Two Systems” principle was a political euphemism for “Hong Kong as a colony of China.” He compared the Basic Law to an agreement forced upon Tibetans by the presence of the Chinese military.

“We will have democracy, freedom and human rights only when we go independent,” he said.

Andy Chan Ho-tin

Andy Chan Ho-tin. Photo: In-Media.

But he said Hong Kong independence was only a means to an end: “The most important thing is whether Hong Kong people will survive, whether our culture, our language, our traditions will continue, whether Hong Kong people will still exist in 200, 300 years.”

In a 104-page judgment handed down on Tuesday, Court of First Instance judge Thomas Au ruled that an election officer is entitled to ask whether the candidate understands the relevant Basic Law articles. Au said that there is criminal liability for making false declarations under the Electoral Affairs Commission Regulation and an officer can examine matters beyond the formal compliance of the nomination form.

Chan signed a declaration stating that he would uphold the Basic Law and pledge allegiance to the Hong Kong SAR. However, he did not reply to an enquiry from a returning officer – an election official – concerning his pro-independence stance.

Freedom and human rights

“In the future, a returning officer can decide whether one can run in elections,” he said. “This gives returning officers a lot of power and is not reasonable.”

“First they bar pro-independence candidates from running, second they bar those who advocate self-determination from running,” he added. “Then they will bar localists and democrats.”

Chan said the judge dismissed all of their arguments relating to freedom and human rights.

high court

Photo: In-Media.

He also said the judge dismissed judgements from British or Commonwealth cases they raised, saying that Hong Kong’s situation was different: “In other words, Hong Kong has gotten further and further away from the Common Law system,” Chan said.

Judge Au did accept the McGuinness v United Kingdom from the European Court of Human Rights when it was raised by the government’s counsel Benjamin Yu.

Appeal

Chan also said he will decide whether to file an appeal, after seeking advice from lawyers and his party members.

“I am not optimistic, I am pessimistic, but we will continue trying,” he said.

But judge Au ruled that returning officers should give a reasonable opportunity to candidates to respond to questions.

Asked if the ruling could benefit barred candidates whom officers did not ask any questions of, Chan said: “It is hard to tell. I am not a legal expert. I can only say I am not optimistic about other people’s election petitions.”

Agnes Chow

Agnes Chow. Photo: In-Media.

Demosisto’s Agnes Chow was barred from the 2018 legislative by-election owing to her party’s stance on self-determination.

He urged young people to be patient: “This is a very difficult time. We the people who have stood up will bear the difficulties. We will fight till the end, and we hope you will save your energy until the time is right, when the evil Chinese Communist Party is punished by the heavens.”

“I do not wish young people to make unnecessary sacrifices. They should not be impatient. It is difficult for them to participate in the system. Outside the system, say if they join peaceful street protests, they may be seen as breaking the law [and then] be unreasonably prosecuted and jailed.”

Edward Leung, then-spokesperson of localist group Hong Kong Indigenous, and Alice Lai, an advocate of Hong Kong’s return to the United Kingdom, also filed election petitions after they were barred from running. Their cases have yet to be heard in court.

Pro-independence activist 'will not run for election again unless it is democratic,' after losing legal challenge