- High Court rules that pan-democrat lawmaker Au Nok-hin, who ran in the Demosisto figure's place, was not duly elected
- Chow, who called ruling a 'devastating victory', not given opportunity to make her case before disqualification, judge finds
A Hong Kong court has overturned an election ban on pro-democracy activist Agnes Chow Ting, who was barred from a Legislative Council by-election last year because her political party had called for self-determination in the city.
The High Court also ruled on Monday that pro-democracy lawmaker Au Nok-hin, who ran in Chow's place and won the seat on Hong Kong Island, was not duly elected, because of Chow's wrongful disqualification.
Chow, of the localist party Demosisto, applied to run in the by-election of March 2018, after her colleague Nathan Law Kwun-chung was removed from his seat for taking his oath improperly.
Election official Anne Teng Yu-yan invalidated Chow's candidacy, saying the doctrine of "democratic self-determination" promoted by Demosisto contravened the "one country, two systems" principle implemented under the Basic Law, the city's mini-constitution.
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However, in a judgment handed down on Monday, Mr Justice Anderson Chow Ka-ming found that Teng failed to afford Chow an opportunity at the first instance to respond to such doubts, as he found Chow appeared to only support a "watered-down" version of the doctrine of self-determination.
"These matters ought to be considered by the returning officer after hearing Ms Chow's representations and prior to making the decision, and not retrospectively after the event," he ruled on Monday.
But the judge held firm that self-determination, a doctrine some likened to pro-independence, would not be compatible with the city's mini-constitution Basic Law, which states that Hong Kong is an integral part of China.
Returning officer 'should not have had power to ban Demosisto activist'
"Any person who advocates for the independence of Hong Kong, or for a process of 'self-determination' by Hong Kong People, in the ordinary sense in which that expression is used, whether before or after June 30, 2047, cannot genuinely and truthfully intend to uphold the Basic Law and pledge allegiance to the (Hong Kong Special Administrative Region)," he wrote.
He said it was because Hong Kong law did not provide for a "referendum", a step self-determination advocates argued should be held at some stage to determine the future of Hong Kong, including breaking away from China.
But the version Chow advocates involves a referendum that is not legally binding.
Yet the judge said: "Had the returning officer afforded Ms Chow an opportunity to put forward her case … it might well be the case that the returning officer would still have rejected it."
"However, that is a matter for the returning officer to decide," he concluded.
Chow's candidacy was invalidated in January last year by Teng on the ground that the doctrine of "democratic self-determination", as promoted by Demosisto, a group she helped found together with Joshua Wong Chi-fung, was inconsistent with the "one country, two systems" principle enshrined in the Basic Law.
Teng ruled that since Chow was affiliated with the group, it showed she also subscribed to the doctrine. Chow then filed the election petition.
Speaking outside the High Court, Chow described the judgment, which found in her favour, as a "devastating victory" because the court reaffirmed the power of election officials to bar candidates based on their political views.
"I won the election petition this time only because of the procedural (in)justice … Even if I were to be elected again, the returning officer may still disqualify me after making an inquiry (about my political stance)," Chow said.
She also stated she would not give up on the self-determination doctrine, and it would be too early at this stage to discuss her chances of being able to run in a future election.
The High Court made a landmark ruling last year to uphold a ban on pro-independence campaigner Andy Chan Ho-tin from running in the 2016 Legislative Council election.
The court determined that election officials could ban candidates if they find "cogent, clear and compelling" evidence they would not uphold the Basic Law, and the candidate failed to clear such concerns after being offered a reasonable opportunity to respond.
Wong, Chow and Chan were among the prominent activists and pro-democracy lawmakers arrested on Friday over their alleged criminal involvement in various protests since June, sparked by the now-shelved extradition bill.
The Demosisto pair were granted bail after being charged in relation to an unlawful assembly outside Wan Chai police headquarters on June 21.
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