Hong Kong’s election ban may be legal, but the controversy will rumble on

But Chan’s case has now re-emerged as a sober reminder as candidates, including self-determination activist Agnes Chow Ting, were barred from next month’s Legco by-election according to what critics said was a more stringent yardstick.

Some also drew a connection between the disqualification saga and the election hopefuls, accusing Beijing of taking advantage of the say it had in the disqualification case to extend its legal reach on candidates’ eligibility.

The major legal dispute

Since 2016, a total of 10 hopefuls have been disqualified by the returning officers over two elections. Seven, including Chan, had their candidacies declared invalid in the Legco election of 2016, with five relating to their political stance.

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Potential candidates have to submit a nomination form, as well as supporting documents, to meet all the requirements in the Legislative Council Ordinance, ranging from age to right of abode.

Section 40(b)(i) states that the form will include a declaration “to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.

The declaration used to be part of the nomination document. But in a controversial move barely 48 hours before nominations opened in the 2016 elections, the government introduced this requirement as a separate declaration for applicants to sign.

All applications have to go through and be confirmed by the returning officers, who are usually civil servants.

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According to Daly, Ho & Associates, the law firm that represents Andy Chan, the legal dispute rested on whether the ordinances in question allowed returning officers to go beyond administrative vetting. Did they have the right to venture into the territory of looking at not just whether a declaration had been signed properly but to determine whether Chan had a true intention to observe that declaration? In other words, were they the gatekeepers of ensuring candidates would uphold the Basic Law, which in turn recognises China’s sovereignty over Hong Kong?

Chan’s lawyers argue that Section 10 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation simply mentions that the nomination form must be in the specified form. The section adds that each candidate must “make the declarations and promissory oath” to uphold the Basic Law, but does not specify whether it was the returning officers’ job to decide whether the candidate is sincere in making the declaration.

Further, while the ordinance provides the power for the returning officers to “require a candidate to furnish other information that officer considers appropriate”, Chan challenged whether that entitled the officers to take into account his public statements containing his political beliefs, past conduct and future intentions, in concluding he had made a false statement.

Legal scholar Johannes Chan Man-mun was of the view that the power of the returning officers was limited and “purely administrative”, in that they could merely ensure the declaration form had been “duly completed”.

“It is no business of the returning officer to inquire into the subjective mind of the candidate, especially when there is no procedure for doing that and the way it is carried out provides the affected candidate no right to be heard and no timely remedy, and the restriction has an indefinite duration,” the University of Hong Kong professor said. In Chow’s case, for example, she was not asked any questions before the officer banned her.

Human rights law expert Professor Michael Davis spelled out the danger of having a civil servant decide such an issue. “Even a judge would be on shaky ground trying to make such an inappropriate determination on the boundaries of free speech and electoral rights,” he said. 

“There is an added danger that a civil servant put in such a position will feel pressure to align with what they feel their superiors in government want from them, which seems to be the case with our sudden rash of disqualifications over the past couple of years,” he said.

But senior counsel Ronny Tong Ka-wah disagreed. “It should not just be about the format … The returning officers have a responsibility to verify it,” he said. 

And in doing so, since they did not have the statutory power, for instance, to call witnesses, the only evidence they could rely on would be public statements made by hopefuls, be it to the press or on social media, Tong said.

The impact of the 2016 NPCSC interpretation

Two months after Andy Chan lodged his legal action, two pro-independence lawmakers-elect, Sixtus Baggio Leung Chung-hang and Yau Wai-ching, were removed from office in November over a legal bid by the local government unhappy about the pair’s offensive oaths at the opening of the legislature.

The government asked the court to unseat the Youngspiration pair, as their oath – in which they had referred to mainland China as “Chee-na”, a derogatory wartime term – was unconstitutional.

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The section of the constitution in question, Article 104, states that “when assuming office”, all official post holders must swear to uphold the constitution, as well as to swear allegiance to the city and China.

The NPCSC interpretation spelled out that the oath should be taken sincerely and solemnly. Made in November 2016, the interpretation also said that upholding the Basic Law and pledging allegiance were not only to be satisfied in the legal content in the oath, but also in “the legal requirements and preconditions for standing for election in respect of or taking up the public office”.

Principal lecturer at HKU Eric Cheung Tat-ming criticised it as “an external structure” built on existing laws.

Even pro-establishment lawmaker Paul Tse Wai-chun, a solicitor by trade, said he found it strange when he first saw that part of the interpretation.

“Some candidates had already been disqualified by the returning officers before the interpretation was handed down,” he said, referring to Andy Chan and Edward Leung.

“Perhaps [Beijing authorities] had foreseen the decisions would be challenged in future and so they deliberately touched on the issue in the interpretation,” he added, admitting that it might have “widened the scope of the constitution, making it applicable to not just lawmakers’ swearing-in procedures but also elections”.

However, the local government has already been using the interpretation as its lawyers cited it in court during Chan’s case. It also appeared on the invalidation letters sent to the recently disqualified hopefuls.

Moving goalposts and dangers

The latest turn of events suggested to lawyers a shifting threshold and that, where before only pro-independence hardliners would be disqualified, the likes of Chow, who arguably is not in the same camp, will now be in equal danger. Chow’s party’s stance is for voters to have a say in self-determination.

Tong said although he did not think Beijing’s interpretation had helped the government in its legal argument, the lawmaker disqualification episode itself might have prompted “returning officers to correct a previous mistake”.

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After unseating Baggio Leung and Yau, the two pro-independence elected lawmakers, the government went on to target four more pan-democrat legislators, including Law.

“The goalpost has not been moved. What happened was that the previous returning officer [who ruled on Law’s candidacy] made an error,” Tong said. “They are being more careful this time.”

Davis warned of the dangers of a precedent being set in Chow’s case. He said while many might not agree with the cause, the previous decisions that disqualified Andy Chan were clear in that they targeted opinion advocating independence.

But in Chow’s case, the activist was “disqualified for her party affiliation without any of her views being elicited”.

Johannes Chan also raised concerns over when one could be disqualified based on one’s presumed political beliefs, whatever they might be.

He cited professor Lau Siu-kai, vice-chairman of semi-official think tank The Chinese Association of Hong Kong and Macau Studies, who recently said even he, a Beijing adviser, did not know whether anything critical of Article 23 of the Basic Law, the provision which requires Hong Kong to enact a national security law, could be regarded as a refusal to uphold the Basic Law.

A pro-Beijing figure himself, Tse said in the long term there should be local legislation which spells out the parameters and defines the dubbed “red line”, in a bid to curb unnecessary speculation and fears.

Tuesday’s judgment should provide more clarity, legal experts agree, though not a consensus.

As for Andy Chan, victory might not matter. He said: “Even if I won in this one, [the government] would find another way to hinder me.”