Pro-democracy lawmakers Au Nok-hin and Gary Fan lost their Legco seats on Tuesday after the city's top court refused to hear their appeals against High Court rulings that their elections were invalid.
The High Court ruled in September that Demosisto leader Agnes Chow and localist Ventus Lau were wrongly banned from running in 2018 by-elections on Hong Kong Island and in New Territories East respectively.
The High Court ruled that a returning officer did not give Chow a fair opportunity to respond to the claim that based on the group's previous calls for self-determination for the Hong Kong people, she would be unlikely to uphold the Basic Law.
Similarly, the High Court ruled that a returning officer did not give Lau an opportunity to respond to the contention that he supported Hong Kong independence, and would therefore fail to uphold the Basic Law.
Au’s lawyer had told the Court of Final Appeal that Au was the backup candidate for Chow, and they hoped the court could use its discretion to allow him to keep his seat.
But Chief Justice Geoffrey Ma asked Chow’s lawyer if the aim of the election petition had been to unseat him, and the lawyer said yes.
Justice Ma then said Au had no appeal basis, and he dismissed both his and Fan’s challenge bids.
Speaking outside the Court of Final Appeal, Lau said he welcomed the top court’s decision.
“It shows the court confirms that it’s illegal for the returning officers to disqualify some candidates, although it’s a pity that the two lawmakers lost their seats because we won the election petitions,” he said.
But Fan said that while he accepts the court's decision, he is disappointed.
“The mistakes were made by the returning officers, disqualifying candidates without reasonable grounds. But the winning candidates, Au Nok-hin and I, and the voters shoulder the responsibility, not the government. I find it injustice,” he said.
Au said there is a loophole in election laws, under which candidates can’t even have back-up plans.
“The electoral institution in Hong Kong is crazy. It’s because when you’re trying to challenge the government’s decision about disqualifying candidates, the only way for you to do it is an election petition of which the objective is to unseat the incumbent,” he said.
Chow said it was regrettable that the appeal bids were rejected, adding that the government does not have to bear any responsibility for its political screening mechanism, and it is the elected lawmakers and the people who voted for them who lose out.
The unseating of the two pro-democracy lawmakers means that if the camp is to keep its veto power in Legco, for example to reject an impeachment motion, it must ensure the support of Civic Passion's Cheng Chung-tai or medical sector lawmaker Pierre Chan.
It is not clear if or when by-elections will be held to fill the two vacant seats, with Legco's current term due to come to an end next summer.
The Constitutional and Mainland Affairs Secretary Patrick Nip said the authorities have to consider issues such as manpower - if they are to hold by-elections to fill the two vacant seats.
Nip said it's up to the Electoral Affairs Commission to decide. He also sidestepped questions on whether an administrative error on the part of the government led to the current situation - stressing that the returning officers had been doing their job impartially.
Last updated: 2019-12-17 HKT 21:32