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Legislative Council oath-taking saga

Hong Kong localists launch final court appeal against Legislative Council disqualification

Youngspiration’s Yau Wai-ching and Sixtus Baggio Leung Chung-hang will ask top court to decide if Hong Kong courts have the power to determine if Beijing went beyond its powers in interpreting the Basic Law

PUBLISHED : Wednesday, 28 December, 2016, 6:35pm
UPDATED : Thursday, 29 December, 2016, 2:53pm

Two Hong Kong pro-independence activists engulfed in an oath-taking saga, which earlier saw them ousted from the legislature, lodged a last-ditch legal bid on Wednesday to be reinstated.

In their final appeal, Youngspiration lawmakers-elect Yau Wai-ching and Sixtus Baggio Leung Chung-hang will ask the Court of Final Appeal to decide if Hong Kong courts have the power to ­determine if Beijing went beyond its powers in issuing an interpretation of the Basic Law, according to court documents their lawyers have filed.

Residents identifying as ‘Hongkongese’ believe city’s high degree of autonomy under threat

The pair, who expressed concern over lodging such an appeal for fear that it would invite further interference with the judiciary by Beijing, asked the top court to clarify whether the Hong Kong courts could rule whether a Basic Law interpretation amounted to either an amendment of the mini-constitution or a disguised interpretation of local legislation.

The democratically elected pair were disqualified by the city’s courts after the government filed a legal bid over anti-Beijing antics they used during a swearing-in ceremony in the Legislative Council in October.

Hong Kong’s Basic Law according to the Theory of Legal Origins

Their case prompted Beijing’s National People’s Congress Standing Committee to issue a controversial interpretation of the Basic Law ahead of the court ruling, stating that lawmakers should be sworn in properly, and only be given one chance to do so.

In the documents the pair filed on Wednesday, the pair also asked whether the city’s courts had the power to determine if a Beijing ­interpretation would have retrospective effect.

Watch: Youngspiration activists announce their appeal against disqualification

The pair notified the Court of Appeal on the last day of the 28-day period in which they could file an appeal. They urged it to give them the green light to take their case to the highest court, where they can put forward legal arguments of “great general or public importance”.

According to the documents, the appeal could also centre on whether the non-intervention principle, generally applicable for legislative affairs, should extend to cover the administration of oaths by Legco. They also asked the top court to clarify the judiciary’s role in oath-taking, compared to that of the Legco oath administrator.

Youngspiration pair’s appeal to focus on Hong Kong core values and question Legco independence

The pair lost their cases in the Court of First Instance and then the Court of Appeal.

Both courts ruled that the judiciary would be the ultimate ­administrator of oaths as a constitutional duty enshrined in the “supreme” Basic Law that trumps the legislature’s non-intervention principle.

Watch: Youngspiration duo force their way into the Legco chamber

The Court of Appeal also ruled that Hong Kong courts had no jurisdiction to determine if an interpretation went beyond Beijing’s powers.

After their defeat in the Court of Appeal, the pair expressed reservations about taking their case further, fearing that such a move would open the city’s judiciary to more interference through further interpretations of the Basic Law.

Universal suffrage back in focus for Hong Kong New Year march

But on December 14, Leung and Yau said they had made up their minds to fight the last legal battle with argument centring on Hong Kong’s core values. They said they would question the validity of a Beijing interpretation of the Basic Law, the city’s separation of powers from the mainland, Legco’s independence and the legitimacy of elections.

The government has since launched similar court challenges over the oaths taken by pro-democracy legislators Nathan Law Kwun-chung, “Long Hair” Leung Kwok-hung, Lau Siu-lai and Edward Yiu Chung-yim.

The cases are expected to be heard together in February next year.