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Hong Kong localism and independence

Hong Kong government fails to block localist duo from retaking Legco oaths, but wins right to seek judicial review

Hearing on application for judicial review will take place on November 3 in a case that will seek to invalidate the Legco status of Sixtus Leung and Yau Wai-ching

PUBLISHED : Tuesday, 18 October, 2016, 6:58pm
UPDATED : Wednesday, 30 November, 2016, 11:01am

Declaring full-frontal war on Tuesday night, the Hong Kong government took the unprecedented step of mounting a legal challenge to disqualify two pro-independence lawmakers on grounds that they had contravened the Basic Law during their swearing-in last week.

In a last-minute bid, the administration sought but failed to obtain an interim injunction to bar Youngspiration pair Sixtus Baggio Leung Chung-hang and Yau Wai-ching from ­retaking their oaths on Wednesday morning at 11am.

Watch: pro-independence lawmakers battle Hong Kong leader in court

But Mr Justice Thomas Au Hing-cheung did allow an application for a judicial review against Legislative Council president ­Andrew Leung Kwan-yuen’s decision over the retaking of the oaths.

The hearing on the application has been set for November 3.

Hong Kong government accuses localist lawmakers of hurting feelings of Chinese with ‘offensive’ oath-taking

Chief Executive Leung Chun-ying and Justice Secretary Rimsky Yuen Kwok-keung had mounted the legal battle against the duo. Swept up in the case is the Legco president, who had earlier in the day indicated he would allow the two to retake their oaths on Wednesday.

Watch: three Hong Kong lawmakers have oaths rejected

Last Wednesday, the opening session of Legco descended into chaos as the two amended the ­official oaths they were to read out and pledged allegiance to “the Hong Kong nation”.

After Tuesday night’s hearing, Sixtus Leung said the pair would take the oath in a way that gave them “the upper edge” as the legal battle had effectively put the development of Hong Kong in the coming decades at stake.

He refused to disclose any details, but pledged he would read the oath “in full” as he did last time.

Last night, lawyers for the chief executive and justice secretary ­accused the duo of “exhibiting to the world” that they would not uphold the Basic Law recognising Hong Kong as an inalienable part of China.

The lawsuit effectively places the executive and legislative branches on a collision course.

In court, the lawyer for Andrew Leung argued that the government’s move was a “serious deprivation of the constitutional rights” of the two lawmakers-elect.

“I want to emphasise the ­president has an important institutional duty … to protect the institution elected by different sectors of society,” Jat Sew-tong SC, acting for the Legco president, told the court. “[He has to] safeguard the interests of all elected councillors.”

The call would be a very strong one to make if the court was to take the “irreparable” action to disqualify the two, Jat warned.

Hectar Pun SC, for Sixtus Leung, argued that it was incorrect to say his client had violated the Oaths and Declarations Ordinance.

“Article 104 of the Basic Law is irrelevant in this case,” Pun said. The barrister also said there was no urgency justifying an interim injunction.

Barrister Jeffrey Tam, for Yau, said disqualifying the pair would affect the operation of the legislature.

But Johnny Mok Shiu-luen SC, representing the government and a member of Beijing’s Basic Law Committee, argued that the Basic Law provision on oath-taking in Article 104 was intended to put emphasis on China’s sovereignty.

“These people are sending a message to the world and also to the public that we can function as a member of Legco without pledging allegiance to the HKSAR of the People’s Republic of China,” he said.

To allow them to take the oath again, Mok added, would ”create a state of confusion as to what is the meaning of the further acts undertaken”, which could include initiating bills or giving speeches in Legco.

Voices condemning the Youngspiration duo gathered momentum after last Wednesday’s inaugural Legco meeting when they not only pledged allegiance to “the Hong Kong nation” but also referred to the sovereign state as “Chee-na”, a variation of the derogatory Shina used by Japan for China during the second world war.

The pair also displayed a banner that read “Hong Kong is not China”.

In court, Mok called them ­“ostentatiously unfit persons” to be Legco members for even “a moment”.

Signalling that the action was not without public support, Mok said: “The public would be disappointed if they see that these people who blatantly attacked and challenged the constitutional ­regime can return and resume ­office.”

The legal action sets the stage for a protracted constitutional battle as the Hong Kong government is seeking to ban elected lawmakers from entering the chamber on the ground of their oath declaration. Mainland authorities might be forced to step in, one analyst warned.

The court challenge came hours after Leung Chun-ying vowed to take follow-up action against the Youngspiration pair for altering their oaths.

The pan-democratic camp accused Leung Chun-ying of “ruining the separation of powers” by inviting the courts to intervene in Legco’s domestic affairs.

“The chief executive pays no respect to the dignity and the independence of our legislature,” Civic Party lawmaker Dennis Kwok said.

The day began with Andrew Leung declaring invalid the oaths taken by Sixtus Leung and Yau Wai-ching along with three others and requiring that they seek in writing a request to retake their oaths at today’s session.

Sixtus Leung and Yau on Tuesday night indicated they would write to the Legco president seeking to retake their oaths but stopped short of delivering an apology.

Sociology lecturer Lau Siu Lai, architecture sector representative Edward Yiu Chung-yim and Wong Ting-kwong of the Democratic Alliance for the Betterment and Progress of Hong Kong also had their oaths invalidated.

Andrew Leung said he would not say whether Wednesday’s session would definitely be their last chance “but I sincerely hope they will follow the legal requirements in taking the oath seriously.”

A mainland official handling Hong Kong affairs warned Beijing would have to come up with measures to counter calls for Hong Kong independence if the row over the oath-taking could not be resolved within the city.

He did not rule out an interpretation of the Basic Law by the National People’s Congress Standing ­Committee, saying: “We should not demonise the Standing Committee’s interpretation of the Basic Law.