Hong Kong Basic Law

Court ruling on oaths a welcome and valid clarification of the law

To argue otherwise is to deny the fundamental principle of ‘one country, two systems’ that is the bedrock of Hong Kong’s governance

PUBLISHED : Thursday, 17 November, 2016, 3:16am
UPDATED : Wednesday, 30 November, 2016, 10:57am

The court ruling on the legality of oaths taken by lawmakers concerns issues of great constitutional significance. The outcome of the case was not a surprise. Beijing’s interpretation of the Basic Law eight days earlier was binding on the court. It left little doubt that the government would succeed in its bid to have two pro-independence lawmakers removed because of their failure to properly take the oath.

However, the judge’s view of the case and his treatment of the legal arguments presented by lawyers for the government, the two legislators and the Legco president, remains important. The court ruling is historic in that this is the first time a judge has disqualified elected lawmakers over defects in their oaths. Mr Justice Thomas Au Hing-cheung needed to consider fundamental constitutional principles such as the separation of powers under the Basic Law and the nature of the relationship between the judiciary and the legislature.

His comprehensive judgment clarifies the constitutional position. Au ruled on the scope of the common law principle that the courts will not interfere in Legco’s internal affairs. Applying an earlier ruling by the Court of Final Appeal, the judge held that in Hong Kong this principle is subject to the constitutional requirements of the Basic Law, which is effectively our city’s constitution. In other words, the court had the power to determine whether the two lawmakers should be disqualified for failing to meet the Basic Law’s requirements. He distinguished our city’s arrangements from those in Britain, where parliament is sovereign. That is not the position in Hong Kong, as Legco is subject to the Basic Law. This is a timely reminder of the legal position and the differences that exist between Hong Kong and Britain.

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The judge made a point of stating that his conclusions would have been the same with or without Beijing’s interpretation. Most of the content of his ruling involved legal analysis and consideration of precedents that were quite separate from the decision made by the National People’s Congress Standing Committee. This is a welcome approach, which will assist our community in better understanding the legal framework.

Beijing’s interpretation laid down general principles regarding oath-taking. It was not specific to the case before the court. Similar cases involving other lawmakers have now been brought. We have every confidence in the courts to decide them on their own merits, according to the law. But the interpretation signals the importance Beijing attaches to national sovereignty and territorial integrity. The independence movement in Hong Kong has generally been regarded here as a matter of little concern – the actions of a misguided minority. The central government’s intervention has left no doubt that it views Hong Kong independence as a serious matter that it will not tolerate.