Game changes in Hong Kong’s Legislative Council after ban of two localist lawmakers
By-elections, appeals, a raft of legal challenges among implications of court ruling
It was not too long ago that the city’s pro-democracy forces celebrated their unexpected victory in the Legislative Council elections when they scored one of their best performances in recent years, winning 30 seats in the 70-member legislature.
But on Tuesday as localists Sixtus Baggio Leung Chung-hang and Yau Wai-ching were booted out of the Legco complex which they moved into four weeks ago, the game changed just as suddenly.
With Legco comprising geographical and functional constituencies, the arena for dominance for pro-democracy forces has always been in the former. But now it looks like they could lose their edge even there. In turn, the shift could prompt their opponents to press for a contentious change to Legco rules to stop filibustering.
Before the oath-taking drama, the pro-democracy bloc held 19 geographical constituency seats against 16. They could have easily blocked any change to the rules, which requires majority support in both geographical and functional constituencies.
Leung and Yau’s disqualifications narrowed the margin in the geographical constituencies to just one seat – 17 to 16.
If filibustering were ended, bills put forward by the government as it wraps up its term under the unpopular Chief Executive Leung Chun-ying could gain traction.
Separately, the judge who banned the two localists also dismissed their counsel’s arguments that the court should not intervene in the case and leave the matter of their oath-taking misdemeanours to Legco, citing the separation of powers.
The Basic Law, rather than the legislature, is supreme, said Justice Thomas Au Hing-cheung, and the principle of nonintervention is necessarily subject to constitutional requirements.
“The non-intervention principle as applied in Hong Kong therefore does not prohibit the court from determining the questions of” whether an oath taken by the lawmaker complies with the important constitutional requirements under Basic Law Article 104 and whether the member should be disqualified should he or she fail to comply with such requirements, he wrote in his ruling.
Judicial reviews galore
The unprecedented legal case taken by the government last month has since inspired a string of “copycat” judicial challenges from various members of the public against – to date – 18 lawmakers across the political spectrum.
Student Ivan Mok Ka-kit sought his own version of a judicial challenge against Yau and Leung on October 17, followed by another against pro-democracy lawmaker Lau Siu-lai.
On November 10, Robin Cheng Yuk-kai, a veteran member of the Taxi Drivers and Operators Association, who constantly decried the Occupy civil disobedience movement in 2014, filed the third legal action against eight pan-democratic and localist lawmakers: Raymond Chan Chi-chuen, Cheng Chung-tai, Eddie Chu Hoi-dick, Nathan Law Kwun-chung, “Long Hair” Leung Kwok-hung, Shiu Ka-chun, Edward Yiu Chung-yim and Lau.
The next day, retired civil servant Kwok Cheuk-kin became the first to try holding pro-establishment lawmakers accountable in court, lodging a judicial review against Ann Chiang Lai-wan, Abraham Razack and Wong Ting-kwong.
Most recently, on Monday, waiter and member of pro-establishment group Voice of Loving Hong Kong Ricky Chan Ka-wai filed a judicial review against 11 pan-democrat and localist lawmakers, including five new names: Dr Fernando Cheung Chiu-hung, Roy Kwong Chun-yu, Lam Cheuk-ting, Andrew Wan Siu-kin and Helena Wong Pik-wan.
The growing barrage of applications came about after the mainland’s top legislative body intervened in the oath row and ruled that Hong Kong’s public officials – including lawmakers – must take their oaths sincerely and solemnly, and read the oaths accurately and completely.
Leung and Yau had infused their oaths with words that insulted China and used banners reading: “Hong Kong is not China”.
University of Hong Kong law lecturer Eric Cheung Tat-ming said although yesterday’s ruling set out some basic legal principles, it was unlikely to directly impact on pending cases.
He noted that during the pair’s hearing they did not tell the court why their acts should not be viewed as “declining” to take the oath, therefore leading to their removal. “It was their loss,” Cheung said, adding that other lawmakers could contest this aspect of the court’s ruling by saying they did not decline to take the oath, even if they had varied their words during the swearing-in.
But Cheung said Lau Siu-lai could be at risk, given that this ruling meant that a lawmaker’s oath could be disqualified if one wilfully declined to take it.
Lau dragged out her oath on October 12, and later wrote on Facebook that what she read out was “90-odd” individual words with no “continuity and meaning”.
If the Facebook post could be admitted as evidence, Cheung said, “it bears a certain risk to Lau”.
By-elections on the cards
The localist pair yesterday pledged to file an injunction to stop the government from declaring their seats vacant, with a political scholar warning that the duo or their allies would face an uphill battle to mount a comeback in future by-elections.
Baggio Leung yesterday pledged to take the fight all the way to the Court of Final Appeal, even it cost millions of dollars.
“We aim at submitting our appeal on Wednesday, together with an application for an injunction to stop the government from officially vacating our seats and preparing for by-elections,” he said, referring to his New Territories East seat and Yau’s in Kowloon West.
“If the seats are vacated, our appeal would become purely an academic debate.”
A spokesman for the Electoral Affairs Commission yesterday said it would arrange for a by-election after the Legco clerk declared a vacancy in the legislature.
In February, the Civic Party’s Alvin Yeung Ngok-kiu won a seven-horse by-election to fill the seat vacated by his mentor Ronny Tong Ka-wah in New Territories East.
Young pro-independence activist Edward Leung Tin-kei of Hong Kong Indigenous lost in the race but bagged an impressive 15 per cent of votes.
But Dr Ma Ngok, a political scientist at Chinese University, said localists might not be able to garner as much support as before in another by-election.
“While some voters might cast what we called ‘protest votes’ in protest at the disqualification, many pragmatic voters might be disappointed by the duo’s acts and decide to vote for pan-democrats instead,” Ma said.
It also remains unclear whether Leung and Yau could participate in any by-election, after Beijing’s earlier ruling stated that those who stand for election should also pledge allegiance to Hong Kong as part of China.
Ma said it would be hard for the pro-independence camp to find successors with the popularity to appeal to voters.
“If [candidates] are not allowed to advocate or touch on the pro-independence drive, how could the voters know they are from that camp?” he said.
And by-elections use a “single seat, single vote” system. That would not favour localists, who tend to win under the regular proportional representation system, under which they can get elected after securing a small fraction of votes.
The duo’s next moves
Apart from an abrupt halt to their political careers, Leung and Yau face the more pressing burden of settling the huge financial bill triggered by the court case, which could go on to the Court of Final Appeal.
The High Court yesterday ruled that the pair should bear 80 per cent of the legal costs after losing the case to the government, with the rest of the bill to be footed by Legco president Andrew Leung Kwan-yuen.
The pair, whose term the court ended on October 12, might face a further reckoning, as Andrew Leung revealed yesterday, in that they would need to return part of the salaries paid to their assistants to the government’s coffers after the Legco secretariat does its calculations. The duo might also need to return the operation costs of their office, which were paid out to them in advance.
Leung and Yau, who worked in their party, Youngspiration, as an e-commerce manager and a community officer respectively before being elected to the Legco chamber, had been granted a total of HK$1.67 million in operating funds, entertainment and travel expenses, as well as IT and set-up costs.
Leung, formerly president of City University’s student union, admitted Youngspiration could not afford to pay those enormous legal costs and might consider raising the money through crowdfunding.
“We are not ready. Things have been happening too fast,” Leung said, adding that he was not eligible for legal aid because of his HK$93,000 monthly salary from Legco.
The entire oath-taking saga has also prompted a broad swathe of localists to rethink their plans.
“We have been trying hard to deliver our message through electioneering, but can we still do the same in future?” Leung said. “The returning officers and Legco secretary general could exhaust all means to block us.”
But Leung remained defensive and said he had no regrets over his conduct and choices.
“It is a setback for us … but I would only have regret for what I have done wrong, and I don’t think I have done anything wrong,” Leung said.
Additional reporting by Tony Cheung