A Hong Kong court overturned a government decision to ban pro-democracy activist Agnes Chow from the legislative elections on Monday, saying that the officer in charge of the election did not give her a fair opportunity to respond.
High Court judge Anderson Chow wrote that there was a “breach of the principle of natural justice or procedural fairness,” because the government electoral officer disqualified Chow without giving her a reasonable opportunity to respond.
The ruling also meant that Chow’s replacement candidate – independent Au Nok-hin – was not duly elected to his seat, because of Chow’s wrongful disqualification.
Returning Officer Anne Teng disqualified Chow from running in the March 2018 legislative by-election because of her affiliation with Demosisto, a group which supports self-determination for Hong Kong people. The returning officer said Chow would not be able to uphold the city’s Basic Law and pledge allegiance to Hong Kong.
On Monday, the judge ruled in Chow’s favour, saying that there was no dispute that the returning officer Teng “did not give Ms Chow any reasonable opportunity to respond” to the materials used to decide she was ineligible.
“The Returning Officer’s failure to do so is contrary to the principle of natural justice or procedural fairness, which is applicable to a decision on whether a nomination as a candidate in a Legislative Council election is valid or not,” the judge wrote in his 29-page ruling.
“Even if the Returning Officer considered that she had clear and cogent evidence that Ms Chow did not genuinely and truthfully intend to uphold the Basic Law and pledge allegiance to the HKSAR, she should still have given Ms Chow an opportunity to refute such evidence and explain her position with a view to persuading the Returning Officer to come to a different conclusion.”
The High Court judge wrote that the right to be heard is “an important procedural safeguard which should not be lightly displaced,” and that Chow’s case had no particular urgency for the returning officer to deny Chow an opportunity to respond.
Agnes Chow told reporters outside the court building that the result was a “pyrrhic victory.”
“Returning officers still have the power to filter candidates by their political opinion. Candidates still have to uphold the Basic Law, and those who support separatism or self-determination will still face difficulties running in elections,” she added.
Asked whether Au’s seat will be open to a by-election or left vacant, Chow said that it depended on whether the Department of Justice will appeal the case, and that it was very difficult to predict future developments.
In his ruling, judge Anderson Chow affirmed the controversial forms which election hopefuls were required to sign, whereby candidates agreed to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.
Citing a landmark case involving independence advocate Andy Chan, the judge wrote that election officials may ban candidates if they find “cogent, clear and compelling” evidence that they did not genuinely intend to uphold the Basic Law.
However, such a decision to disqualify election candidates can only be made after the candidate had been given a reasonable opportunity to respond, he added.
HKFP has reached out to government representatives for comment.
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