Hong Kong court rules localist lawmakers must vacate Legco seats
Judge cites supremacy of Basic Law, follows interpretation issued by nation’s top legislative body aimed at stemming pro-independence sentiments in city
PUBLISHED : Tuesday, 15 November, 2016
Hong Kong plunged deeper into political uncertainty after the city’s High Court ruled on Tuesday that two newly elected localist lawmakers should lose their seats over the way they took their oaths last month.
In his judgment on the government’s unprecedented bid to have Sixtus Baggio Leung Chung-hang and Yau Wai-ching disqualified, Mr Justice Thomas Au Hing-cheung said their conduct during the October 12 swearing-in ceremony meant they had declined to take their oaths and must therefore vacate their seats.
Watch: Localist lawmakers disqualified from Hong Kong parliament
The judge also ruled that Legislative Council president Andrew Leung Kwan-yuen had no power to arrange a second oath-taking for the pair, adding that he arrived at his conclusion independent of the national legislature’s interpretation of the Basic Law last week.
“The court ... agrees with the submissions of the chief executive and secretary for justice that, with or without the interpretation, the court would reach the same above conclusion.”
The court ... agrees with the submissions of the chief executive and secretary for justice
The judge, adopting a common law approach to the Oaths and Declarations Ordinance, said an oath must be taken solemnly and sincerely and that oath takers are “bound in conscience to perform an act faithfully and truthfully”.
He agreed with the government’s view that Leung and Yau “did not truthfully and faithfully intend to commit themselves to uphold and abide by the two obligations” under the oath, as they “objectively clearly” did not recognise the principle of “one country, two systems” and the importance of “one country”.
Au addressed the localists’ argument that the court could not in this case intervene in legislative matters.
He drew a distinction from the UK, where he said the principle of parliamentary supremacy reigns and no written constitution exists. In Hong Kong, he said, the Basic Law is “supreme” instead of the legislature.
After the judgment, Baggio Leung pledged to appeal the court’s decision, which he said would affect Hong Kong for decades.
“I was calmer than I expected,” he said of hearing the judgment. “I’ll soon discuss possible legal actions with my lawyers.”
Leung added he was not fighting for his Legislative Council seat but for the city and that he did not regret what he had done.
If the court could strip us of our qualification, we all know what kind of society we live in now
Yau said she and Leung had been democratically elected. “If the court could strip us of our qualification, we all know what kind of society we live in now,” she said.
She believed Beijing’s interpretation had heaped pressure on the court.
Yau said she and Leung would announce their next move at 7pm Tuesday at Legco, where an injunction bars them from acting as lawmakers.
Asked if he had disappointed the some 30,000 people who voted for him, Leung said he had never expected Beijing to intervene in the matter. He argued the government would use all means to disqualify him even if he did not alter his oath.
“Do people want us two lawmakers to do our jobs smoothly for four years but make compromises, or insist on what we advocated during our campaigns?” he asked.
Leung said the judgment would cause many who advocated self-determination for Hong Kong to rethink their future plans.
“We have been trying hard to deliver our message through electioneering, but can we still do the same in future?” he asked. “The returning officers and Legco secretary general exhausted all means to block us.”
The court in its judgment said that although the Legco clerk or its president had an “incidental” duty and power to determine whether one complied with the law, that person did not have a final say. Instead, the court had the authority to “finally” adjudicate the matter.
It added the duo vacated their office from October 12, the day they took their oaths.
The judicial review was sought last month by Chief Executive Leung Chun-ying and Secretary for Justice Rimsky Yuen Kwok-keung to disqualify the Youngspiration pair, who pronounced China as “Shee-na” – a variation of “Shina” – a derogatory term used by Japan during wartime, during their swearing in ceremonies on October 12.
The unprecedented legal action lodged by the chief executive against the legislature drew a queue of more than 50 people outside courtroom 14 of the High Court, even though the judge did not plan to address parties in open court. A throng of both local and international journalists gathered outside the building in Admiralty to hear the ruling.
Watch: thousands rally to oppose Hong Kong independence
At issue in the judicial review was whether Legco president Andrew Leung Kwan-yuen, who had already invalidated their oaths, had the power to give them a second chance to be sworn in.
The government argued he did not have such authority; the localists countered he did and that the court should not intervene, citing the separation of powers. The Legco president’s lawyers said he had no role in the case.
But the interpretation by Beijing, issued last Monday and four days after the initial court hearing, cast a shadow over the case.
Stressing the need to maintain national security and to keep pro-independence voices out of the Hong Kong legislature, the Standing Committee of the National People’s Congresssaid that lawmakers and other public officials must take their oaths “sincerely”, “accurately” and “completely”.
The committee’s ruling also stated an oath administrator has the power to disqualify anyone deliberately failing to fulfil oath-taking requirements and that no second chance would be given.
But it did not make clear whether its ruling had retroactive effect. Some Basic Law Committee members gave the view that it was up to the court to decide that matter.
The ruling is expected to affect several other judicial reviews subsequently filed by supporters of the city’s pro-establishment camp targeting about a dozen lawmakers who added words to the prescribed oath to make a political statement.
Executive Councillor Jeffrey Lam Kin-Fung, who is also a pro-establishment lawmaker, hoped the court’s ruling would help restore order in Legco and Hong Kong.
“It also shows that as Chinese we must respect our nation,” he said. “Oath-taking is a solemn matter ... and lawmakers must serve society according to their oath.”
Watch: Hong Kong protest over Beijing’s interpretation
“Baggio Leung and Yau’s behaviour was totally unacceptable ... It was even more [childish] than what children would do,” he added.
Lam defended Beijing’s intervention in the matter and called the interpretation necessary, despite Au’s claims it had no bearing on his judgment.
“The ruling would be the same, but the duo’s behaviour angered 1.3 billion Chinese and people around the world,” Lam said. “We understood the National People’s Congress had to step in.”
He hoped that by-elections could be held in Kowloon West and New Territories East as soon as possible to fill the seats with “people who will defend the city’s rule of law and freedoms”.
Watch: Legco chaos as localists seek to retake oaths
Jiang Shigong, deputy director of Peking University’s Centre for Hong Kong and Macau Studies, said the court’s ruling showed there was “no conflict between judicial independence in Hong Kong and the Standing Committee’s interpretation”.
“The judgment shows people who have legal knowledge share the view of the committee that the two localists did not take their oaths solemnly and sincerely,” he said.
Jiang believed that if the Beijing body had not interpreted the Basic Law, various sectors would “continue to squabble over the matter” even after the court’s judgment.
“The interpretation is instrumental in restoring order and stability to Hong Kong,” he said.
Additional reporting by Gary Cheung
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