The Hong Kong High Court dismissed a judicial review on Friday that sought to challenge the constitutionality of the new nomination requirement applicable to the forthcoming District Council Ordinary Election. In upholding the requirement’s constitutionality, Judge Russell Coleman ruled that even though the nomination requirement encroached in the constitutionally protected right to stand for election, it is not “manifestly without reasonable foundation”.
To start with, the court adopted a more lenient standard of review in this case. While the court believes that the right to stand for election is directly linked to the electorate’s interest in being given the widest choice of candidate, and that the right ought not to be unduly restricted, the court also believes that the Legislative Council is better equipped to assess the qualification criteria of candidacy. Coleman reasoned that electoral laws relating to the qualification criteria for a candidate involve political decisions and legislative provisions reflecting political judgment, meaning the judiciary will be inclined to give a wider margin of appreciation.
The court ruled that the new nomination requirement serves legitimate aims to fully implement the guiding principle of “patriots administering Hong Kong.” It also aims to ensure that the candidates are familiar with the district and will be dedicated to serving the districts. The court also found that the requirement will help better reflect the opinions of the majority of the people to enhance stability across the political spectrum.
Moreover, the applicant submitted that there was no effective safeguard against arbitrary refusal to nominate. The court did not accept this argument because the members of the three district committees were not particularly appointed for the exercise of nomination but, in general, to serve their respective districts. The phenomenon of the members in the three district committees who tend to favor themselves or their peers is not necessarily inappropriate because they are more familiar with the district.
The court also found that the applicant did not provide any direct evidence as to why the “pan-democrat” camp might not have obtained eligibility for candidacy. The court did not think it was appropriate to speculate the possible reasons.
The Legislative Council implemented the District Council reform earlier this year, in July. One of the major reforms is the nomination requirement—nominations from 50 to 100 electors for the District Council geographical constituency and three to six members of each of the three District Committees—the District Fight Crime Committee, the District Fire Safety Committee and the Area Committee in the District. The forthcoming election is to be held on December 10. The election will be the first District Council election since the reform was implemented. None of the candidates claim to be from the “pan-democratic camp,” which won around 85 percent of the seats in the previous 2019 election, which had a historically high voting rate of 71 percent.
