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Legislative Council

Oath-row intervention reflects Beijing’s distrust of Hong Kong judges, lawyers say

Timing of the National People’s Congress Standing Committee ‘unfortunate’, says Bar ­Association chairwoman Winnie Tam Wan-chi SC

PUBLISHED : Friday, 04 November, 2016, 11:53pm
UPDATED : Wednesday, 30 November, 2016, 10:59am

Beijing’s intervention into the oath-taking controversy involving two lawmakers has put the High Court in an embarrassing ­position that reflects the central government’s distrust of judges, lawyers say.

The timing of the National People’s Congress Standing Committee was “unfortunate”, Bar ­Association chairwoman Winnie Tam Wan-chi SC said.

“Because the judicial process has already started, [the interpretation] would leave an impression to Hongkongers and the international community that the central government does not trust the Hong Kong judicial system to solve the problem,” she said.

Hong Kong will pay a heavy price for yet another Basic Law interpretation

Others urged the court not to be too concerned at the prospect of a ruling from the committee – particulary as this was the sentiment of society in 2001.

In the case of the Director of Immigration v Chong Fung Yuen, the Court of Final Appeal ruled that a Hong Kong court, in interpreting the Basic Law, should not consider how the Standing Committee would react.

If the committee issues an ­interpretation, it is binding on the courts under Article 158 of the Basic Law.

“But if it has not issued one, the court should not speculate and any prospect of interpretation should be irrelevant and be excluded from consideration,” Johannes Chan Man-mun, professor of constitutional law at the University of Hong Kong, said.

Chan said the plan to interpret the Basic Law had embarrassed the court because it “means ­Beijing does not care what the court will decide or what the Hong Kong government has decided”.

Beijing interpretation on Legislative Council oath taking rattles Hong Kong

As of last night, Mr Justice Thomas Au Hing-cheung had yet to give the High Court judgment after listening on Thursday to arguments from the government, the Legislative Council president and the two localists, Sixtus Baggio Leung Chung-hang and Yau Wai-ching.

Au has indicated he will deliver his ruling as soon as practicable on whether the pair, who used derogatory language to insult China, should be given a second chance to retake their oaths as lawmakers or be disqualified. Asked if the judge was notified of Beijing’s intent to interpret the Basic Law, the judiciary said it was inappropriate to comment.

If the judge manages to deliver his decision before the ruling – and comes down in favour of the localists – the government may take the case to the Court of Appeal, asking it to reverse the judgment based on Beijing’s ­decision, according to Eric Cheung Tat-ming, principal law lecturer at HKU.

Hong Kong’s top legal body ‘deeply concerned’ over mainland intervention in oath-taking saga

In the scenario that the judge rules the pair cannot retake their oaths, they may also seek an appeal, but their chances would depend on the content and scope of the Beijing ruling, he said.

If the interpretation was of a broad nature, there may be ­leeway for the pair to argue in their own favour, but if it was specific about what constituted a valid oath and criteria for disqualification, “the interpretation would amount to adjudicating the case against the pair”, Cheung said.

In the third scenario of the judgment coming after the committee decision, the court would need to either hold another ­hearing or receive submissions from all parties to take the interpretation into account.

How the court ruled would depend on the content of the interpretation, he added.