Bar statement strays into political rhetoric

Political parties always use exuberant and flamboyant language to win applause from the public; for the Hong Kong Bar Association — a respectable professional body for our barristers founded more than half a century ago — politically laden statements with insufficient legal reasoning could cost it its credibility and authority in the eyes of the public. Deplorably, the latest Bar Association statement increasing criticism of the High Court decision to dismiss the election petition of Chan Ho-tin, convener of “Hong Kong National Party”, who was disqualified from contesting the 2016 Legislative Council election, is one example.

The returning officer banned Chan from the 2016 LegCo election since the secessionist objective of his party, his publicized advocacy of Hong Kong independence and nullification of Basic Law meant Chan’s nomination was invalid because he did not mean what he pledged in the declaration, based on Section 40(1)(b)(i) of the Legislative Council Ordinance which provides that a nomination is valid only if the nomination form is accompanied by, among others, a signed declaration to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.

In allaying the concern over the legality of the declaration and that of the returning officers’ power to substantively review the nominees’ intention, the court has laid down, among others, two legal principles. Firstly the declaration requirement is objectively substantive and is prima facie complied with when the nomination form is submitted with the signed declaration, unless there are cogent, clear and compelling materials to show objectively the nominee does not have the requisite intention. Secondly, procedural fairness requires the nominee to be given a reasonable opportunity to respond to any issues causing the returning officer concern over the nominee’s sincerity to make the declaration, and that the returning officer has to take into account the nominee’s response.

Amid the recent blocking of three election candidates — including Agnes Chow Ting of Demosisto, a political party that advocates “self-determination” — from contesting the March 11 by-election for invalid nominations, the court decision carries great significance as it sets a timely precedent on how forthcoming legal disputes over disqualification of LegCo election candidates with invalid nominations could be legally dealt with despite differences in particular facts of each case. Moreover, the judgment confirmed returning officers’ power to review and validate LegCo candidates’ nominations with substantive requirement for the nominees to uphold the Basic Law and pledge allegiance to the HKSAR.

Nevertheless, instead of staying politically neutral with its sacrosanct duty to uphold the rule of law and judicial independence, it comes as a surprise that our Bar Association seems to have “crossed the Rubicon” with a strong-worded statement on disqualification, lashing out at our court decision with little legal contour. For example, it is oversimplifying, if not misleading, for the Bar Association to argue that the returning officers’ power to confirm validity of LegCo election candidates’ nomination was on the basis of nominees’ political parties or their political beliefs, without also mentioning such assertions were against what was required under our prevailing law. Likewise, by discrediting the returning officers’ duty to confirm the validity of LegCo election candidates’ nominations according to law as “...political screening process…with neither fair open, certain and clear procedure…”, it is being ironically political, sweeping all the legal principles and rationales of the court decision under its carpet.

Worse still, contrary to the Bar Association’s statement, “upholding the Basic Law” is never a “vague and imprecise political concept”. According to Article 104 of the Basic Law, it is a constitutional obligation for all public officials of the HKSAR when assuming office. In Chief Executive v President of the Legislative Council, the court held that the central organizing principle of “one country, two systems” runs throughout the Basic Law as the constitutional document for HKSAR, underlying the constitutional order of the HKSAR establishment. By degenerating the legal and constitutional duty to uphold the Basic Law as a mere “political concept”, it not only shows the Bar Association’s mistrust and suspicion of our Basic Law and the principle of “one country, two systems” but also shows its ignorance of the constitutional order of HKSAR as an inalienable part of China.

The Bar Association has at times called for our respect of court decisions in defense of the rule of law in Hong Kong but it is self-refuting that it has stepped into the shoes of a political party, taking a swipe at the court decision with a political tone. In the dissidents’ eyes, such sensational and populist remarks set out in the Bar Association statement may have earned accolades for taking the “moral high ground” which is ritually deployed as the opposition tactic in shoring up the public empathy. However, such politicized public statements by the Bar Association risk compromising its established legal credibility and professionalism as a pantheon of the elite, independent legal minds of our city.

Let’s hope this politically charged statement is only a slip of tongue and our respectable Bar Association is restrained from cheerleading as the opposition’s protagonist in the shadow of the law, before it becomes too late.