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Hong Kong localism and independence

Analysts fear Beijing’s ruling could curtail debate if Hong Kong lawmakers fear legal action

According to the Basic Law interpretation, legislators who breach their oath may lose their immunity and bear legal responsibility

PUBLISHED : Monday, 07 November, 2016, 11:27pm
UPDATED : Tuesday, 08 November, 2016, 11:27am

Analysts fear Hong Kong lawmakers could lose their immunity from prosecution for statements made in the chamber after Beijing highlighted that members could bear legal responsibility for acts that violate their oath.

The warning has sparked further concerns over the encroachment on freedom of speech in the Legislative Council as Basic Law Committee chairman Li Fei warned that the notion of Hong Kong self-determination as advocated by some activists amounted to a call for independence that breached the city’s mini-constitution.

Beijing interpretation of Article 104 needed for a city in jeopardy: chairman of Basic Law committee

The two localist lawmakers set to be disqualified following Beijing’s ruling, Yau Wai-ching and Sixtus Baggio Leung Chung-hang, are outspoken proponents of self-determination.

Other newly elected lawmakers, including Eddie Chu Hoi-dick and Nathan Law Kwun-chung, have advocated a less radical form of “democratic self-determination” in which Hongkongers should be given a say on their future but this did not necessarily mean independence.

“It is so arbitrary and perhaps soon we will be accused of advocating independence when we call for universal suffrage,” Chu said. “It will definitely restrict freedom of speech and create a chilling effect as now [Beijing] has a new legal weapon to hit out at lawmakers.”

Two Hong Kong localists down, and two more at risk after Beijing ruling

Under the Legislative Council (Powers and Privileges) Ordinance, there shall be freedom of speech and debate in the legislature and such freedom should not be liable to be questioned in any court or place outside the council. No civil or criminal proceedings shall be instituted against any lawmakers for their statements made in the legislature.

But according to the interpretation of Basic Law Article 104 handed down by the National People’s Congress Standing Committee on Monday, someone who makes a false oath, or who engages in conduct in breach of the oath after taking it, shall bear legal responsibility in accordance with the law.

Article 104 states that when assuming office, lawmakers must “swear to uphold” the Basic Law, and “swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China”.

Dr Ma Ngok, a political scientist at Chinese University of Hong Kong, said the ruling would constitute an enormous constraint on free debate in the legislature.

“Lawmakers will think twice before making a statement as they could be legally challenged [by their opponents] for making false oaths,” he said.

The Basic Law no longer protects the democratic rights of Hongkongers
Eddie Chu Hoi-dick

But Chu and his allies pledged they would not be deterred by the ruling. “The Basic Law no longer protects the democratic rights of Hongkongers but is being used as an instrument to take away our rights,” Chu said.

“That’s why we need to advocate self-determination … to establish democracy and rule of law.”

Chu said the pro-democracy camp should stay united and he called for the abolition of Article 158 of the Basic Law, which stipulated the NPCSC had the power to interpret the mini-constitution.

Chief Executive Leung Chun-ying on Monday sidestepped a question on whether the ruling would restrict the free speech of lawmakers.

Legal scholar Eric Cheung Tat-ming, of the University of Hong Kong, said he would not rule out the possibility of some lawmakers launching a legal challenge against their opponents for making pro-independence speeches in the chamber and said the NPCSC would have the final say on what the legal consequences would be.