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Hong Kong localism and independence

Beijing’s draft ruling on oath-taking for Hong Kong legislators ‘so detailed it amounts to a new law’

Constitutional law expert says interpretation sets dangerous precedent for Beijing to interfere when it does not like a law, but Bar Association chairwoman believes it will have limited impact

PUBLISHED : Saturday, 05 November, 2016, 11:04pm
UPDATED : Wednesday, 30 November, 2016, 10:59am

The Beijing draft ruling on how lawmakers should take their oath appears so elaborate that it amounts to making a new law for Hong Kong, lawyers say, though they differ on how much the intervention will affect the judicial system.

One professor says the ruling could set a dangerous precedent for Beijing to issue its own interpretation if it does not like a Hong Kong law or does not trust local judges in dealing with a sensitive issue. The Bar Association chief says the decision could provide clarity for lawmakers about oath-taking.

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The draft interpretation, set to be voted on Monday, is likely to prescribe the format and conduct for legislators taking the oath and the consequences of non-compliance, as well as defining words like “allegiance” in Article 104 of the Basic Law, according to Basic Law Committee members who have been consulted by the National People’s Congress Standing Committee.

But Johannes Chan Man-mun, an expert in constitutional law at the University of Hong Kong, said such details should not exist in or be added to a document like the Basic Law.

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“It is acceptable Beijing wants to define words like ‘allegiance’ and ‘uphold’, but to add in so much other detail is not interpreting the law but making a new law, which the Standing Committee cannot do,” he said.

The controversy erupted when two localist lawmakers used derogatory language about China when taking their oaths. The chief executive and secretary for justice then launched a court bid to disqualify the two, Sixtus Baggio Leung Chung-hang and Yau Wai-ching, from taking their Legco seats.

Under Article 18 of the Basic Law, if the Standing Committee wishes to apply a mainland law to Hong Kong, it must first consult the Hong Kong government and add it to annex 3 of the Basic Law. Chan said the Standing Committee arguably bypassed this procedure by way of interpretation.

Another possible point of the interpretation is to confirm that the Legislative Council’s secretary-general, who is in charge of administration issues, has the power to invalidate oaths.

Chan said it would be ridiculous to elevate the status of the secretary-general and put him in the constitutional document, giving him too much power.

Barrister Ronny Tong Ka-wah agreed the ruling was so specific that it amounted to Beijing “legislating for Hong Kong”, but he did not see it clashing with the city’s three relevant legislation pieces regarding oaths and elections.

Bar Association chairwoman Winnie Tam Wan-chi SC said the interpretation would pose a “limited” impact on the court case.

She said Beijing appeared to be more concerned with the format and conduct of the oath-taking and oath-takers, while arguments heard by the court focused on whether the court had jurisdiction to rule on Legco matters.

Tam said the ruling may not be a bad thing, although it was “unfortunate” that it would give the community the impression that Beijing was interfering in the judicial process.

“The interpretation is Beijing’s reaction to the lawmakers who tested its bottom line with extreme thoughts and juvenile behaviour. Now it is clear what it doesn’t accept,” she said, explaining why it might be a good thing.

She gave the example of Lau Siu-lai, who paused six seconds between each word of the oath and was required to retake the oath. “She asked how many seconds she should pause. Now the interpretation is answering your tongue-in-cheek questions,” Tam said.

A source briefed on the ruling said the Standing Committee’s interpretation had retrospective effect, but it did not necessarily affect Lau because “it is up to Hong Kong whether it wants to enforce the ruling on a particular case”.

Zou Pingxue, director of Shenzhen University’s centre on Hong Kong and Macau Basic Laws, believes that the interpretation should not affect other localists such as Lau because the principle of the rule of law was non-retrospective and Lau’s controversy was less serious.

Barrister-at-law Martin Liao Cheung-kong argued that in previous judgments made by Hong Kong’s Court of Final Appeal, it agreed that the Standing Committee’s “interpretive power is comprehensive and unrestricted” by other authorities.