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Legislative Council of Hong Kong

‘Large portion’ of Hong Kong localist lawmakers likely to keep Legco seats, former justice minister says

Elsie Leung’s comments offered a day before High Court issues ruling on judicial review involving Youngspiration pair at centre of oath saga

PUBLISHED : Monday, 14 November, 2016, 12:34pm
UPDATED : Monday, 14 November, 2016, 5:32pm

A day before a Hong Kong court issues a ruling on a judicial review involving two localist lawmakers-elect, a legal heavyweight in the city says she does not believe “a large portion” of the other non-establishment lawmakers facing legal challenges will lose their seats.

Former justice secretary Elsie Leung Oi-sie offered her observation on Monday as pro-government group The Voice of Loving Hong Kong said it would seek a judicial review later in the day to disqualify the 11 pan-democratic and localist lawmakers who altered their Legislative Council oaths last month.

Her comment came as the High Court announced it would issue a ruling on Tuesday on the government’s judicial review case filed against Sixtus Baggio Leung Chung-hang and Yau Wai-ching, the two localist lawmakers-elect whose swearing-in ceremonies sparked the controversy.

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The 13 lawmakers included the eight targeted in a separate judicial review application filed last week by Robin Cheng Yuk-kai, a veteran member of the Taxi Drivers and Operators Association. He asked the court to declare the swearing-in of eight lawmakers invalid.

“If the court makes the decision that they do not deserve to be lawmakers, then they should not complain about such a fair decision,” Leung said on an RTHK programme on Monday. “But at the same time, I also do not believe that a large portion of the lawmakers will lose their seats.”

She said she was aware that some lawmakers had added words before or after the oath when they were sworn in at the Legislative Council last month. Whether those lawmakers could be disqualified depends on whether the additional words run against the “context” of the oath.

The controversy started when Yau and Baggio Leung angered mainland and local officials by declaring allegiance to a “Hong Kong nation” and pronouncing China in a manner deemed as an insult to the country.

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The Hong Kong government then took the unprecedented step of mounting a legal challenge to disqualify the duo. But before the local court could issue a decision, the National People's Congress, the country’s top legislative body, on November 7 issued an interpretation of the Basic Law that effectively bars pro-independence advocates from becoming lawmakers.

The interpretation requires lawmakers-elect to take their oaths “sincerely” and “solemnly” or face disqualification. Beijing’s move has led to concerns the city’s independent judiciary is in danger.

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Leung, who is also vice-chairwoman of the Basic Law Committee under the NPC, made clear on Monday that self-determination was not allowed under the Basic Law, the city's mini-constitution.

She said the principle of “one country, two systems” allowed Hong Kong a high level of autonomy but not absolute power to decide its way forward. The powers of the executive, legislature and judiciary were authorised by Beijing, she added.

Can you exercise total power over Hong Kong affairs? You cannot
Elsie Leung, former justice minister

“Under the ‘one country, two systems’ principle and the Basic Law, can you exercise total power over Hong Kong affairs?” she asked. “You cannot.”

She added the Hong Kong government should consider several factors when it comes to approaching Article 23 of the Basic Law, relating to national security. She suggested letting lawmakers propose the law instead of the administration in order to minimise conflicts within Legco.

Asked about Hong Kong’s chief executive election next year, Leung said the city’s future leader should possess vision and set forth a plan beyond his or her five-year term.

In an interview published Monday in the Hong Kong Economic Journal, the former justice minister added the next chief executive should be able to communicate with different political parties and enjoy public support.

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Also on Monday, former Legco president Jasper Tsang wrote in his column in Chinese-language newspaper AM730 that it was ridiculous to understand Beijing’s interpretation of the Basic Law to mean that someone whose oath was invalidated would not be given a second chance to be sworn in.

“If the interpretation is understood in that way, DAB lawmaker Wong Ting-kwong, who omitted ‘Hong Kong’ during his first oath-taking, would have been disqualified,” he wrote.

Last Monday Legislative Affairs Commission vice-chairman Zhang Rongshun said in his explanation of the interpretation that if a person inadvertently failed to fulfil the oath requirement, he or she could be allowed to be sworn in again.

Watch: Localists rush into Legco to retake oaths

Tsang said Zhang’s explanation indicated that whether a second chance should be given would depend on whether the failure to comply with the oath requirement was deliberately made.

In the previous Legco term, Tsang gave lawmaker Wong Yuk-man a second chance when he botched his first attempt.

But Basic Law Committee member Maria Tam Wai-chu said on Friday there was no legal basis for Tsang to give Wong a second chance four years ago, adding that the fact no one launched a legal challenge against Tsang’s ruling did not mean his judgment was correct.

Beijing officials’ remarks on ‘insincere oaths’ not laws but a ‘persuasive explanation’, Maria Tam says

Tsang also wrote in his column that Beijing’s interpretation of Article 104 of the Basic Law did not state the person who administers an oath has the power to rule an oath taker has declined to take an oath as duly requested because of his or her deliberate non-compliance.

“The Basic Law and relevant laws in Hong Kong do not authorise the Legco president or Legco’s clerk to disqualify a lawmaker on the grounds that his or her oath is invalid,” he wrote.

Additional reporting by Gary Cheung