Hong Kong courts

Ousted Hong Kong legislator argues in oath-taking appeal that China’s top legislative body only has power to clarify Basic Law not supplement articles

  • Seven grounds of appeal mounted against lower court’s decision to declare ‘Long Hair’ Leung Kwok-hung had been disqualified
  • Lawyer demands Leung be given another chance to retake oath since he did not decline or refuse to take it in the first place
PUBLISHED : Wednesday, 28 November, 2018, 9:31pm
UPDATED : Wednesday, 28 November, 2018, 10:12pm

China’s top legislative body had no power to supplement articles in Hong Kong’s mini-constitution when it issued an interpretation on proper oath-taking two years ago, according to an ousted lawmaker appealing against his disqualification.

Martin Lee Chu-ming SC on Wednesday mounted seven grounds of appeal against a lower court’s decision last year to declare his client “Long Hair” Leung Kwok-hung had been disqualified as a lawmaker since the day he took an invalid oath during the swearing-in ceremony on October 12, 2016.

Chief among his concerns were the limits of the powers of the National People’s Congress Standing Committee (NPCSC) in interpreting the city’s mini-constitution, the Basic Law.

Lee argued in the Court of Appeal that the NPCSC could only clarify the Basic Law, but not supplement any articles during the interpretation.

Even if such a power existed, he said there could be no retrospective effect and demanded that Leung be given another chance to retake his oath since he did not decline or refuse to take it in the first place.

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Leung was a lawmaker for 13 years until he and five other pro-democrats – Sixtus Baggio Leung Chung-hang, Yau Wai-ching, Lau Siu-lai, Nathan Law Kwun-chung and Edward Yiu Chung-yim – were unseated after the previous administration, led by then chief executive Leung Chun-ying, challenged their oaths in October and December 2016.

The NPCSC issued an interpretation on Article 104 of the Basic Law in November 2016, requiring oath takers to swear sincerely, solemnly and accurately – with retrospective effect from July 1, 1997.

Sixtus Leung and Yau failed in their appeals; while Lau, Law and Yiu later dropped their bids.

On Wednesday, Lee invited the court to treat the interpretation as “a very important opinion of the Standing Committee that the Oaths and Declarations Ordinance should be amended”.

Without the amendment, he said oath administrators and the public alike lacked guidance on the objective, criteria and benchmark for proper oaths.

“I don’t understand why the government won’t do it,” Lee said.

Lee also complained that the lower court erred in neglecting Leung Kwok-hung’s legitimate expectation from past experience and in confusing his acts as intended to be incorporated as part of his oath.

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“Until the interpretation, who in the whole of Hong Kong would have thought that when the clerk said OK, the president said OK, [the lawmakers] would be disqualified?” Lee continued. “How can we allow this unfortunate state of affairs to happen in Hong Kong?”

Benjamin Yu SC, for the chief executive and secretary for justice, will reply before Court of Appeal vice-president Mr Justice Johnson Lam Man-hon and justices Jeremy Poon Shiu-chor and Aarif Barma on Thursday.