Hong Kong localism and independence

Beijing pre-empting Hong Kong courts on oath-taking case would put ‘unnecessary pressure’ on judges, chief executive hopeful says

Retired judge Woo Kwok-hing joins legal academics and lawmakers in criticising surprise move by central government

PUBLISHED : Wednesday, 02 November, 2016, 12:35pm
UPDATED : Wednesday, 30 November, 2016, 11:00am

A retired judge running in Hong Kong’s chief executive race said the mainland’s top legislative body should not interpret the Basic Law over the ongoing oath-taking saga when local courts had yet to begin a hearing on the matter.

Woo Kwok-hing, who was the first to throw his hat into the ring to become the city’s next leader, said the move would also give “unnecessary pressure to judges”.

Watch: Woo Kwok-hing in SCMP Facebook Live Q&A

Sources told the Post that the National People’s Congress Standing Committee will meet on Thursday to discuss an interpretation of the Basic Law, making it the first time it has pre-empted the city’s courts in such a fashion.

“According to legal procedures, there should not be an interpretation at this point in time since the court case has yet to begin,” Woo said.

The High Court will have its first hearing on the government’s attempt to disqualify two localist lawmakers, Yau Wai-ching and Sixtus Baggio Leung Chung-hang, at about the same time the Standing Committee is set to deliberate on the issue on Thursday morning.

The Youngspiration duo had earlier pledged loyalty to “the Hong Kong nation” and pronounced China as “Chee-na”, similar to the derogatory “Shina” used by Japan during wartime, during their oath-taking.

“I tend to agree with the secretary for justice who said that he hoped that this case could be dealt with within Hong Kong’s legal system,” Woo added.

Government lawyers may ask for a court hearing over the case to be postponed, according to University of Hong Kong legal academic Eric Cheung Tat-ming.

This is despite calls from legal academics and lawmakers from the democratic and pro-establishment camps for the case to be dealt with by the local courts.

Cheung said that the NPC’s move may push government lawyers to wait for the interpretation results.

“If the interpretation is on the [NPC’s} confirmed agenda, it’s possible government lawyers will ask to postpone the hearing ... saying that an interpretation of the Basic Law [by the NPC] is the ultimate explanation of it,” Cheung said during an RTHK radio programme on Wednesday morning.

This would be Beijing’s fifth interpretation of the Basic Law since the 1997 handover.

Cheung said the interpretation of Hong Kong’s mini-constitution would cause “unprecedented destruction” to the city’s judicial independence.

“The court has scheduled a hearing for tomorrow, but they are not even waiting for the court’s ruling. It represents that [China] wants to deprive Hong Kong courts of their judicial independence,” Cheung said.

“It means that China wants to force their legal system and way of thinking onto Hong Kong,” he added.

Cheung said it was likely that the body would interpret Article 104 of the Basic Law, which stipulates that all officials, including Legislative Council members, have to swear to uphold the constitution and swear allegiance to the city as a Special Administrative Region of the People’s Republic of China.

“Their interpretation could [follow] the same reasoning as when the Electoral Affairs Commission barred localist leader Edward Leung Tin-kei from running for the elections [because he advocated for the city’s independence],” Cheung said.

Pro-Beijing lawyer-turned-lawmaker Paul Tse Wai-chun also supported letting local courts handle the matter before mainland China intervened.

“From a Hong Kong standpoint, I believe we should wait for the court to rule. But Beijing might have a more far-reaching vision that we don’t see,” Tse said on the morning radio programme.

“At the moment, I don’t see a need to ‘kill a chicken with a knife used to slaughter a cow’,” Tse said, referring to a Chinese idiom that meant there was no need to expend great effort on smaller issues.

At the moment, I don’t see a need to ‘kill a chicken with a knife used to slaughter a cow’.
Lawmaker Paul Tse

Article 158 of the Basic Law says local courts can seek an interpretation from the National People’s Congress Standing Committee over affairs which are the responsibility of the central government or concerning its relationship with Hong Kong.

Only one of the previous four interpretations was an outcome of a request from the courts. The rest were either raised by the Hong Kong government or Beijing.

Martin Lee Chu-ming, a former member of the Hong Kong Basic Law Drafting Committee, said Beijing’s move to initiate an interpretation of its own accord is not only an abuse, but also a misuse of the Basic Law.

He cited Article 158, which stipulates that an interpretation should be put forward only by the Court of Final Appeal to the Standing Committee and only in circumstances where the situation falls outside the city’s governing parameters as an autonomous region.

HKU’s former law dean professor Johannes Chan Man-mun, who appeared a programme on Commercial Radio on Wednesday morning, said that Secretary for Justice Rimsky Yuen Kwok-keung may have to consider resigning.

If the interpretation ruling comes before the local court’s ruling, it would make it very difficult for the justice minister to continue to uphold Hong Kong’s judicial system. In such circumstances, he may need to resign, Chan said.