Legislative Council

Top judge rebuffs localists’ argument

Accusation that Beijing ‘supplemented’ Basic Law in ruling not based on evidence and is ‘both arrogant and ignorant’, appeal court hears

PUBLISHED : Thursday, 24 November, 2016, 1:09pm
UPDATED : Friday, 25 November, 2016, 10:18am

It would be “arrogant” and “presumptuous” to accuse China’s top legislature without evidence of acting beyond its remit in its recent interpre­tation of the city’s mini-constitution, a Hong Kong judge presiding over the case of two disqualified localist lawmakers said­ ­on Thursday.

Chief judge of the High Court Mr Justice Andrew Cheung Kui-nung, in challenging the arguments of the two, also suggested the judiciary should have the power to intervene in the legislature’s affairs on constitutional grounds.

“The Basic Law trumps the common law, I am afraid,” Cheung said.

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Newly elected localist lawmakers Sixtus Baggio Leung Chung-hang and Yau Wai-ching were disqualified by the Court of First Instance two weeks ago after an unprecedented judicial challenge filed by the city’s chief executive. The court found the duo to have effectively declined to take their oaths faithfully with their anti-China antics during the swearing-in ceremony on October 12.

Their appeal was heard before Mr Justice Cheung and two fellow justices of appeal, Mr Justice Johnson Lam Man-hon and Mr Justice Jeremy Poon Shiu-chor.

Referring to the interpretation of Article 104 of the Basic Law by the National People’s Congress Standing Committee that laid out oath-taking requirements, which would entail immediate disqualification if violated, Cheung said Beijing’s ruling “cannot be avoided”.

Cheung disagreed with the lower court’s decision that the judgment would be the same “with or without” the interpretation, which was seen by critics as a blow to the city’s judicial ­independence.

Cheung called on parties concerned to make submissions on whether and how the interpretation should be applied, and whether it had retrospective effect. It “would not be prudent” of his court to leave the issue to the Court of Final Appeal, he said. At this point, Hectar Pun Hei SC, for Baggio Leung, said Beijing had “supplemented” the law rather than just interpreted it.

“On what basis do you say that?” Cheung asked, adding that Pun’s statement was a “bare assertion without evidential foundation”.

“You require civil law experts to inform us under this situation, what can be done and what cannot be done” because all lawyers and judges in the room were trained in common law, the judge said. “We’re under the ‘one country, two systems’ interface ... ­It is both arrogant and ignorant to talk about the other system [without evidence]. It’s almost patronising and presumptuous.”

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Pun ended up making a U-turn in deciding not to pursue his argument that the interpretation was unconstitutional to “avoid a crisis”.

But Benjamin Yu SC, for the government, dismissed suggestions that the NPC had gone beyond interpretation, a power afforded to it under the Basic Law.

Yu said the city’s top appellate court had accepted in a previous case that Beijing could “clarify and supplement laws”.

Philip Dykes SC, for Yau, said the interpretation was “irrelevant”. He argued it was “premature” for the court to intervene – a watered-down version of his argument during the original trial that the court should have no jurisdiction at all to step in.

He insisted Legco president Andrew Leung Kwan-yuen had yet to make a decision on disqualifying the localists.