Judge rules on power of returning officers

Local | Sum Lok-kei Feb 14, 2018
Returning officers have statutory powers to disqualify election applicants. This was the ruling by a High Court judge yesterday when dismissing an election petition by Hong Kong National Party convener Andy Chan Ho-tin to overturn then-returning officer Alan Lo Ying-Yi's decision to bar him from entering the 2016 Legco election.

Justice Thomas Au Hing-cheung ruled that returning officers do have the statutory power to look beyond formal compliance to application forms in deciding the candidacy of election applicants.

This ruling could affect Demosisto's Agnes Chow Ting, who was disqualified from the March 11 Legislative Council by-election and was considering filing an election petition.

Chan's application was rejected as Lo decided the pro-independence activist had no intention to uphold the Basic Law.

That is despite Chan making a declaration of his intention to uphold the Basic Law in his application forms.

In his election petition, Chan argued that the returning officer had taken into account irrelevant material and unlawfully inquired into matters that he was not permitted to, including Chan's political platform and public statements.

Senior counsel Gladys Li, who represented Chan, argued during the trial that making a declaration to uphold the Basic Law in the application forms of the election was merely a formality, and that the same applied to the returning officer's power to process Chan's application forms, as well as a confirmation form issued by the Electoral Affairs Commission.

Justice Thomas Au said the court had taken into account the new constitutional order of the HKSAR and the revised Basic Law Article 104.

Au wrote that the article concerning oath-taking and declarations not only covers officials and Legco members, but also election candidates. This means that candidates are also required to make a genuine and truthful declaration of his or her intention to uphold the Basic Law, when they seek to enter an election.

Au also ruled that the returning officer has the statutory power and duty to determine whether Chan's nomination was valid.

"The returning officer was entitled to look at matters beyond the compliance of the nomination form to come to a view as to whether Mr Chan at the time of the nomination intended to uphold the Basic Lasic Law and pledge allegiance to the HKSAR," Judge Au ruled.

On the confirmation form, Judge Au said the Electoral Affairs Commission has the power to issue the form, as it was not a mandatory requirement.

The form was a means to collect further information from the candidate, he ruled.

Au concluded that there had been no material irregularities in the 2016 election and dismissed Chan's petition, also ordering him to bear the costs.

University of Hong Kong legal scholar Eric Cheng Tat-ming said it may appear that the government had won the lawsuit, but Au's ruling may also have set boundaries on the powers of a returning officer.

While Au's ruling reaffirmed the power of the returning officer, Cheng said the ruling implies that officers have to follow due procedure.

Apart from collecting subjective evidence to cast doubt over one's candidacy, Cheng said the ruling implies that the returning officer also has to give applicants the opportunity to explain.

Some of the recently disqualified applicants, including Chow, was not given a chance, Cheng said.

"This exposed a big issue, that the Department of Justice did not act according to the law," he said, urging the department to give an explanation on the matter.

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January 2019