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Legislative Council oath-taking saga

Appeal judges uphold localist pair’s dismissal from Hong Kong’s Legislative Council

Baggio Leung and Yau Wai-ching appear hesitant to take the fight against disqualification to the city’s top court after judges rule against them

PUBLISHED : Wednesday, 30 November, 2016, 10:02am
UPDATED : Thursday, 01 December, 2016, 9:20am

The two pro-independence lawmakers who were kicked out of Hong Kong’s legislature for failing to take their oaths properly lost their appeal against disqualification on Wednesday and appeared hesitant about taking their case to the city’s top court.

The ruling by the appellate court came as a former Beijing official labelled independence activists as “rats running on the streets” who should be hunted down “with no mercy”.

Watch: Two localist lawmakers lose their appeal

What the people who voted for Hong Kong’s Youngspiration pair think now

In quashing the appeal by Sixtus Baggio Leung Chung-hang and Yau Wai-ching, who swore allegiance to a “Hong Kong nation” when taking their oaths last month, the three Court of Appeal judges unanimously confirmed the applicability of Beijing’s “true and proper” interpretation of the Basic Law.

“[The Basic Law] must mean that taking the oath is a prerequisite and precondition to the assumption of office,” the judgment read. “All this is now put beyond doubt by the interpretation.”

The ruling is a political victory for both the Hong Kong and Beijing governments, which have stepped up their rhetoric against advocates of Hong Kong’s independence from China since the pair were elected in September.

The court also conceded it had no jurisdiction over how broad Beijing’s say might be when interpreting the city’s mini-constitution. It also ordered the pair to pay the full legal costs.

Speaking outside court, Leung and Yau reframed their earlier vow to fight all the way to the Court of Final Appeal. They said they were “actively considering” their ultimate appeal and had already written to the appellate court to inform the judges, who were originally expecting to hear their case on Thursday, that they reserved the right to appeal for now.

Leung said he was worried their final appeal might touch upon legal arguments that could prompt the judges to seek a further interpretation from Beijing. He was also worried about having to foot a “seven-digit” security bill for a final court challenge.

Legco president Andrew Leung Kwan-yuen said the statutory period for declaring their Legco seats vacant would expire on Tuesday.

Watch: Baggio Leung speaks to the press

This came as Chen Zuoer, former deputy director of the State Council’s Hong Kong and Macau Affairs Office, said yesterday that Hong Kong “should hunt down the advocates [of independence] with no mercy”.

“This force cannot exist in the political structure” of Hong Kong, said Chen, now president of a top mainland think tank on the city’s affairs, the Chinese Association of Hong Kong and Macau Studies.

Chen was speaking a day after Zhang Dejiang, China’s No 3 official, warned that Hong Kong independence would “bring calamity to the country and the people”, and urged Hongkongers to “struggle” against it.

In a 41-page written judgment, Court of Appeal vice-president Mr Justice Johnson Lam Man-hon cautioned on Wednesday that the courts should not be seen as “being embroiled in political disputes”. “It is important that we keep politics out of the judicial process,” he said.

Before the Court of First Instance was due to hear the case last month China’s top legislature issued a detailed interpretation, making it punishable by disqualification if oaths were not taken accurately and solemnly.

As for concerns that the NPC was amending, rather than interpreting the Basic Law, the appeal judges were unconvinced, saying common law lawyers “untrained in the civil law system, particularly [one] practised on the mainland” could hardly argue if Beijing had gone beyond its permissible ambit.

Unlike the lower court, which ruled that Yau and Leung would have been disqualified “with or without” the interpretation, the appeal judges were noticeably more reliant on Beijing’s input.

“The interpretation, by definition, sets out the true and proper meaning of article 104 from day one,” the judgment read, referring to the Basic Law provision on oath taking. By this, the court also dismissed the argument that the interpretation had affected the two lawmakers retrospectively.

With the government set to go after a third lawmaker, Lau Siu-lai, who paused between every word during her oath, legal scholars said the ruling provided little guidance to her case.