Basic Law

Disqualify Legco pair regardless of Beijing’s ruling, Hong Kong government lawyers argue

Newly filed High Court documents also reveal how Sixtus Baggio Leung Chung-hang and Yau Wai-ching claim the high-level interpretation is flawed

PUBLISHED : Thursday, 10 November, 2016, 6:25pm
UPDATED : Thursday, 10 November, 2016, 11:15pm

Two lawmakers embroiled in an oath-taking saga should be disqualified irrespective of a controversial Basic Law interpretation by Beijing, barristers for Chief Executive Leung Chun-ying have told a Hong Kong court.

But lawyers for Yau Wai-ching and Sixtus Baggio Leung Chung-hang, of Youngspiration, argued the interpretation contradicted other clauses of the Basic Law, was not applicable to their case as it had no retrospective effect and would even be in their favour if it was adopted.

The pair found themselves on the front line last month after the Hong Kong government launched a legal challenge over their use of words, considered offensive by Chinese, at the Legislative Council’s oath-taking ceremony on October 12.

The challenge prompted the National People’s Congress Standing Committee to issue an interpretation of Article 104 on Monday ahead of any ruling by the High Court.

The interpretation said lawmakers must be “sincere” in taking their oaths of office and those who do not comply face instant disqualification.

Article 104 stipulates key ­officials and lawmakers must swear to uphold the Basic Law and allegiance to the SAR.

Mr Justice Thomas Au Hing-cheung, presiding High Court judge, had advised all parties involved to supply further arguments by yesterday after he was informed by the Department of Justice of Beijing’s move.

In court documents obtained by the Post, legal representatives for the chief executive and Secretary for Justice Rimsky Yuen Kwok-keung contend the outcome of whether the two lawmakers should be stripped of their positions “is the same with or without referring to the terms” of the interpretation.

The government reiterated its original argument that the pair had “declined or neglected” to take their oaths on October 12.

Under the Oaths and Declarations Ordinance, the barristers wrote, Yau and Leung should ­immediately lose their seats by the “operation of law” instead of being given a second chance by Legco president Andrew Leung Kwan-yuen. Yet, they maintain the interpretation had a binding effect on local courts.

Philip Dykes SC, for Yau, ­argued that part of the interpretation reaffirmed her position, as the oath had to be taken ­before “the person who is responsible under the law for its administration”, which he said was the clerk of Legco and its president.

But as neither Legco official had made a decision to rule that Yau and Leung had declined and neglected the oath, he said the court should not intervene. “It is no business of this court,” he said.

Hectar Pun SC, for Sixtus Leung, said the interpretation was inconsistent with the Basic Law in that it amounted to an amendment of Article 104, and thereby required the consent of local parties, including two-thirds of all Legco members, as prescribed under Article 159.

Pun warned the floodgates would open if any elector was allowed to legally challenge the oath of any Legco member in court.

Since the beginning of the oath-taking saga, several judicial reviews have been filed against other lawmakers such as Lau Siu-lai, Nathan Law Kwun-chung and “Long Hair” Leung Kwok-hung.

Legco president Andrew Leung Kwan-yuen submitted documents arguing that the ­interpretation by Beijing did not involve his position.