‘Hong Kong courts can decide fate of at least 10 lawmakers despite Beijing ruling’

Law professor says interpretation of the Basic Law on oath-taking did not state if it applied retrospectively

Hong Kong Basic Law

Jeffie LamandJoyce Ng

Published: 8:55pm, 11 Nov 2016

Why you can trust SCMP

Hong Kong judges have leeway to decide the fate of at least 10 pro-democracy lawmakers in the oath-taking saga despite Beijing’s ruling on the matter, a member of the Basic Law Committee says.

Albert Chen Hung-yee, an expert in constitutional law at the University of Hong Kong who sits on the body, said on Friday that the city’s courts were free to determine two issues: whether Beijing’s ruling had retroactive effect, and whether a court itself can overturn a verdict by the oath administrator.

These two issues were not covered in the decision by the National People’s Congress Standing Committee on Monday, he said.

Sixtus Baggio Leung Chung-hang and Yau Wai-ching. Photo: Sam Tsang

“It did not state clearly whether the interpretation would bring any retrospective effect. It will be up to the Hong Kong courts to decide after considering common law principles and the Standing Committee’s interpretation system,” Chen said.

The Standing Committee’s interpretation of Article 104 of the city’s mini-constitution – which stated a lawmaker must be “sincere” and “solemn” in taking their oaths – is widely seen as effectively disqualifying two pro-independence lawmakers, who were already facing a judicial review launched by the government to stop them retaking their oaths.

Yau Wai-ching and Sixtus Baggio Leung Chung-hang used a derogatory term to describe China and pledged allegiance to the “Hong Kong nation” during their swearing-in at the Legislative Council in October.

Pan-democrat lawmakers confront security guards during another flare up in Legco on Wednesday after a lawmaker was ordered to be ejected. Photo: Felix Wong

Following Beijing’s ruling, eight more pro-democracy legislators – who had either chanted slogans or bought along props during the oath-taking ceremony – are embroiled in the saga as the High Court was asked by a citizen on Wednesday to declare their seats to be vacated, even though their oaths were validated by the Legco secretary general or president.

Chen suggested local courts still had a role to play despite the stringent ruling. He said that in the Lau Kong-yung case in 1999, the Court of Final Appeal had established that interpretations from Beijing had retroactive effect.

But he said the court was still free to apply common law reasoning to decide whether it should follow the precedent on retroactivity, and whether it could review the oath administrator’s decision.

We’ll see if Beijing’s Basic Law ruling affects other Hong Kong lawmakers, chief secretary says

Cora Chan, Chen’s colleague at HKU who specialises in constitutional theory, said local courts’ understanding of a Chinese interpretation “might take Beijing by surprise”.

She argued in a Post article this week that the retroactivity decision in the Lau Kong-yung case, which involved right of abode in Hong Kong, should not apply to the current situation because “common law courts ... handle cases differently if they are of the view that the facts are not similar enough to apply previous principles”.

She said the latest Beijing interpretation, different from the interpretation in the Lau case, “clearly added new content to the law”.

Meanwhile, Andy Chan Ho-tin and Jason Chow Ho-fai, of the Hong Kong National Party, met Mongolian exiles at the inaugural meeting of the world conference for Southern Mongolia in Tokyo on Thursday. Chan, who was disqualified from running in the Legco elections in September for his political stance, said he would meet the chairman of the Inner Mongolian People’s Party, Temtsiltu Shobtsood, to exchange independence ideas.

This article appeared in the South China Morning Post print edition as: ‘Courts can decide lawmakers’ fate despite ruling’

Post