Hong Kong’s Department of Justice disclosed on Monday that it had given legal advice to an electoral official who eventually decided to disqualify a pro-democracy activist from running in the coming by-election.
Without referring to the candidate, Lau Siu-lai, by name, Secretary for Justice Teresa Cheng Yeuk-wah confirmed that the department had “collectively” provided a legal opinion to the returning officer for Kowloon West constituency, but dodged the question of whether she was personally involved in drafting the guidance.
“Of course the secretary for justice is the head of the department, so we handed the legal advice to the returning officer collectively,” Cheng told lawmakers during a legal panel meeting on Monday, in response to a question from democratic lawmaker Ted Hui Chi-fung.
“I shall stress that it’s only our legal opinion,” Cheng said, noting that “the final decision” on whether to disqualify someone or not rested with the returning officer “applying the law based on relevant facts”.
Cheng’s revelation confirmed an earlier report by the Post that the justice department had given legal advice in disqualifying Lau, thus stoking concerns among the government’s critics about the neutrality of electoral officials.
The minister explained that the department was the government’s legal adviser, so it would provide such advice when required by returning officers.
Bar Association chairman Philip Dykes, who attended the Monday panel meeting, said the arrangement was not “ideal” and that legal advice on eligibility should be handled by an independent lawyer or judge to dispel any perception of unfairness to candidates.
He noted that in England and Wales, barristers were often appointed “to deal with matters concerning elections”, such as the redrawing of constituency boundaries, to take “the politics out of things”.
Lau was barred from running in the by-election on the grounds that she had not sufficiently disassociated herself from her previous support of independence for Hong Kong. She has hinted that she will challenge the disqualification in an election petition after the November 25 poll.
Veteran democrat Lee Cheuk-yan will run in Lau’s stead against former lawmaker Frederick Fung Kin-kee, former pro-establishment political assistant Chan Hoi-yan and independent candidates Ng Dick-hay and Judy Tzeng Li-wen.
During the panel meeting, Hui sought but was denied a no-confidence motion against Cheng. After he repeatedly asked for an explanation for the refusal, the lawmaker was thrown out of the meeting by panel chairwoman Priscilla Leung Mei-fun.
Had the motion been put immediately to a vote, the democrats could have had an upper hand in securing its passage as there were four democrats and only three pro-establishment lawmakers present, excluding Leung. The chairwoman does not customarily vote unless there is a tie.
“I was only trying to raise a motion,” Hui said after he was ejected. “I wasn’t even protesting or leaving my seat and was only raising a motion peacefully. I can’t believe this is happening.”
He challenged Leung’s ruling, saying it was motivated by the lack of pro-establishment votes, but she countered that Hui’s motion was irrelevant to the agenda of the meeting, which was to examine measures in the policy address delivered by Chief Executive Carrie Lam Cheng Yuet-ngor on October 10.