Hong Kong localism and independence

Decision on Hong Kong localist duo should be made by Legco, not court, lawyers argue in high-stakes hearing over oath saga

Judicial review over potential disqualification of Sixtus Baggio Leung and Yau Wai-ching to continue amid reports of National People’s Congress stepping in

PUBLISHED : Thursday, 03 November, 2016, 9:58am
UPDATED : Wednesday, 30 November, 2016, 10:59am

Key points today:

> All the lawyers are hoping Mr Justice Thomas Au Hing-cheung will deliver his ruling before the National People’s Congress Standing Committee does (if it does) so that the court will not be pre-empted; the judge says he will think about it.

> The government’s lawyers argue that the constitutional provision requiring lawmakers to duly take the oath – Article 104 of the Basic Law – “is at stake” and therefore the court should intervene.

> The localists’ lawyers argue that the Basic Law provides for a separation of powers. They contend the oath-taking controversy should be resolved by the Legislative Council itself through a “political process” rather than a judicial process.

> Legco president Andrew Leung’s lawyer distances his client from the localists, saying Leung should not be dragged into the case at all. Leung no longer argues for the duo’s constitutional right to perform their duties as duly elected lawmakers as he did in the last hearing.

> Hectar Pun, counsel for Baggio Leung, says Chief Executive Leung Chun-ying has wrongly put his name on the case. Pun argues that the law says only the secretary for justice shall represent the government in court proceedings involving Legco.

4.53pm – Ruling promised soon

Before the hearing closed, Mr Justice Thomas Au Hing-cheung said he would deliver his ruling “as soon as practicable”.

Yu suggested the judge issue a ruling first and hand down his judgement at a later date – an apparent reference to the prospect of an interpretation by Beijing.

The judge said he would “think about it”.

Watch: Baggio Leung arrives at court

4.30pm – ‘Chief executive does have role to play’

Benjamin Yu responds to arguments put forward by the other parties.

He said he was “very surprised” at Pun’s argument that the chief executive was in no position to put his name on the case.

“There is a duty under Articles 48 and 2 of the Basic Law [for the Hong Kong government] to be responsible for the implementation of the Basic Law,” Yu said. “The chief executive therefore does have a special obligation in terms of ensuring compliance.”

“That is a very important provision concerning how [the principle ‘one country, two systems’ [operates],” he added.

Hong Kong will pay a heavy price for yet another Basic Law interpretation

3.15pm – Legco president’s decision, not court’s

Hectar Pun, sharing Philip Dykes’ arguments, said Article 79 “exclusively” provided for the conditions to disqualify a lawmaker.

He noted that the phrase in the article, “the president shall declare” a lawmaker no longer qualified for office under seven conditions, meant that it was at the president’s discretion, rather than being the court’s decision to make.

3.05pm – Chief executive’s involvement means use of taxpayer’s money, lawyer says

Hectar Pun SC, counsel for Sixtus Baggio Leung Chung-hang, began by stating that the chief executive was wrongly involved in the case.

[Leung Chun-ying] still sued in the capacity as an elector
Hectar Pun, for Baggio Leung

He cited Section 73(5) of the Legislative Council Ordinance, which reads: “Proceedings brought under this section by a person other than the Secretary for Justice are to be stayed until the person has given security for all costs that the person may be ordered to pay to any witness giving evidence in the proceedings on that person’s behalf or to a defendant.”

Following that logic, Pun noted, the chief executive’s participation in the case meant extra taxpayers’ money would be spent on the matter.

“A person suing in his personal capacity makes no reference as to whether he is an elector in the constituency ... but [Leung Chun-ying] still sued in the capacity as an elector,” Pun said.

The chief executive lives on Hong Kong Island. Baggio Leung and Yau were elected in New Territories East and Kowloon West constituencies respectively.

Mainland paper slams Hong Kong independence advocates in 1,000-word commentary

2.55pm – Disqualification to be through political, not judicial process

As Philip Dykes, counsel for Yau Wai-ching, continued his argument on the separation of powers, the judge put a question to him.

Judge Au asked the lawyer if, following the latter’s logic, only Legco and not the court could disqualify a lawmaker due to misbehaviour, and the president made no decision about it, what would the solution be?

The solution then is ... the issue must stay [inside Legco]
Philip Dykes, for Yau Wai-ching

“It will go on like this. When somebody blatantly not complies….” Au wondered aloud.

Dykes replied: “The solution then is ... the issue must stay [inside Legco].”

“One would presume one would not have a president who will be so weak,” he continued. “Members would call for [him to make a decision].”

Dykes argued it would be a “theoretical rather than real” situation where the president made no ruling, because Legco members would pile sufficient pressure on him to do so. Otherwise, the president would face a vote of no confidence.

“It will be through a political process, not a judicial process. That is consistent with the separation of powers,” he concluded.

12.45pm – Yau’s lawyer says even disqualification is matter for Legco to handle

Philip Dykes SC, counsel for Yau Wai-ching, argued that the matter was entirely within the legislature’s purview.

He said there was a “clear separation of powers structure” in Chapter Four of the Basic Law and the independence of the legislature. The chapter provides for lawmakers’ immunity from legal action. Article 78, a “neglected” clause in the mini-constitution, provides for their freedom to access the Legco chamber, the lawyer added.

The oath-taking acts of the localists, even if considered “misbehaviour” subject to disqualification under Article 79 of the Basic Law, still had to be handled by a Legco procedure, Dykes said.

That article says the lawmaker will be disqualified by a vote of two-thirds of the members of the Legco present.

The hearing will continue at 2.30pm after a break for lunch.

12.30pm – Legco president had power to let duo retake oath

Elaborating on his point that the Legco president should not be brought into the case, Jat argued that the president had the power to let the duo retake the oath.

This was despite Andrew Leung later changing his mind and deciding not to give the duo a second chance.

Jat pointed to Article 72 of the Basic Law and rules of procedures, which lay down the president’s power in relation to the meeting agenda, membership and meeting proceedings.

The lawyer said Leung had exercised his power under Article 72, and he should not be troubled by the present case over whether he should and could disqualify the two or not.

Even if a lawmaker were to be disqualified “because he has become a murderer”, it would still need a vote passed by a two-thirds majority in Legco, Jat said, citing Article 79 of the Basic Law.

“How can an official, the secretariat-general or the president just make that decision [without regard to that article]?”

Jat also countered Yu’s argument over the function of the Legco president, questioning why he asserted that Leung, while not being a final arbiter in the matter, was still obliged to make a decision to invalidate the duo’s vows.

12.15pm –Legco president ‘unnecessarily and wrongly’ brought into case, his lawyer argues

Jat Sew-tong SC began his submission for Legco president Andrew Leung.

The counsel, who robustly argued for the “constitutional rights” of the lawmakers to perform their duties in the leave hearing, today distanced the president’s case from theirs.

He’s here because he’s brought in [as] a respondent unnecessarily and wrongly
Jat Sew-tong, for Legco president Andrew Leung

Jat said the president’s only concern was that he performed his duty in a fair manner and in accordance with the Basic Law.

“The president has no concern and in fact does not condone the actions of the first and second defendants [Youngspiration duo],” the lawyer said. “He’s here because he’s brought in [as] a respondent unnecessarily and wrongly.”

Jat said there were no issues in the case the president needed to address, and they all concerned the two lawmakers only.

He further argued that by joining the Legco president in the case, the government “gives the wrong impression that there is intention for the executive [branch] to exert pressure on [the] legislature”.

“One should carefully avoid any action of political sensitivity,” Jat warned. “But I have heard nothing from my learned friend [counsel for the government] to answer that point.”

Beijing interpretation on Legislative Council oath taking rattles Hong Kong

11.34am – ‘Difficult to imagine’ official declining to take oath

Going through the Oaths and Declarations Ordinance, which not only covers legislators but also principal officials and judges, Benjamin Yu compared the case to an official declining to take the oath.

“It will be difficult to imagine. If [the principal official] declines to the oath, he probably declines to be appointed. The [current question relating to the duo] will not arise, because the person will simply not be appointed.”

11.10am – Lawmakers’ immunity doesn’t cover oath taking, lawyer argues

Arguing that the Youngspiration duo should not be immune from legal action, Benjamin Yu said lawmakers’ immunity as provided for by the Basic Law covers only statements, not their oath taking.

Their freedom of speech is also not an issue here because the question is whether what they took was a proper oath at all, he added.

“Immunity is a shield, but it does not enable you to discharge from the constitutional duty [to take the oath],” the lawyer said, adding that the shield applies only when a lawmaker is sued for making discriminatory remarks in Legco meetings.

10.45am – City’s separation of powers different from that in American, Australian models

After arguing the principle of non-intervention was conditional, Benjamin Yu, citing an article published in a Hong Kong law journal, argued that the separation of powers enjoyed in Hong Kong was different from that in the American and Australian models.

He said the Legco president did not have the final and exclusive say on whether Baggio Leung and Yau Wai-ching satisfied or breached Article 104 and the Oaths and Declarations Ordinance on their oath taking. The court has the final say, he added.

Beijing mouthpiece steps up attacks on Youngspiration duo, wants them barred from Legco

As for the British model, the country does not have something like Article 104, Yu said.

Furthering his argument that the court should have the final say, the lawyer said that if the chief executive failed to take the oath properly, the court should also handle any complaint, even though the administrator of the oath was a central government official.

At this point, Judge Au gave a light response: “In that case, I’d probably receive another application for leave [for judicial review]”.

His remark triggered giggles in the courtroom.

Basic Law Article 104

When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.

10.35am – No space in courtroom

Dozens of members of the public who failed to get a seat in the courtroom are now watching the live broadcast of the hearing at the public area outside the court. The area is full now and no one can go in.

10.30am – ‘In Hong Kong, Basic Law is supreme’

Noting the localists’ arguments that the judiciary should not intervene in the legislature, Benjamin Yu said the principle of non-intervention is “subject to constitutional requirement”.

“In Hong Kong, the Basic Law is supreme. Legco is not supreme, unlike in some other jurisdictions,” he said.

“In the instant case, we are not concerned with the internal workings of Legco, for example, filibustering ... We are concerned with Article 104 of the Basic Law.”

“The court is the protector of the provision in the constitution, and Article 104 is what the Hong Kong court will pay heed to. The principle of non-intervention cannot trump Article 104.”

10.15am – Protesters don’t trust Hong Kong’s rule of law

About 10 members of the pro-Beijing Treasure Friendship Group protested outside the High Court, urging the top national legislative body to interpret the Basic Law.

“Yau and Leung should not be given a chance to retake their oaths as they will spread pro-independence ideas in the Legislative Council,” group member Sam Cheng Kwong-fung said.

“We do not have trust in Hong Kong’s rule of law and the easiest way is to let the NPCSC interpret the law straight away,” he added.

10am – Government contacted Beijing but can’t confirm if NPC is stepping in

The Hong Kong government told the court that though media reports had said the mainland’s top legislative body is going to intervene in the row, it has not received any such news from Beijing.

It has written to the central government to seek a confirmation of the interpretation of Article 104 of the Basic Law concerning the oath taking requirements, a lawyer for the administration told the High Court.

But the local government had not received any confirmation from Beijing by the time the judicial review began, Benjamin Yu SC said.

Referring to the way Baggio Leung and Yau took their oaths in Legco last month, Yu said the manner and form of taking an oath had been clearly stated and that lawmakers had to do so in accordance with the rules.

There can’t be an excuse [for breaching the rules]
Benjamin Yu, for the government

“There is no excuse. There can’t be an excuse [for breaching the rules],” Yu said.

The lawyer added that the duo’s behaviour was tantamount to “declining” to take an oath – a breach which may lead to disqualification.

“They have declined [to take oaths],” he said. “Each of them has declined.”

“To add a personal note, I saw in [the] news that a Hong Kong University academic had an unfounded speculation that because the Hong Kong government has no confidence in the court, it has sought the NPCSC interpretation. That is the furthest from the truth.”

Beijing pre-empting Hong Kong courts on oath-taking case would put ‘unnecessary pressure’ on judges, chief executive hopeful says

9.58am – Media and public pack the courtroom

The hearing triggered by the Youngspiration duo’s antics has drawn widespread attention from locals and the international community alike.

In anticipation of a mass turnout for the judicial review hearing, the courts made special arrangements for allocating seats in the courtroom.

Seating was provided on a first-come-first-served basis, leading to long queues being formed as early as 7am – three hours before the scheduled hearing.

Hong Kong leader C.Y. Leung to skip Beijing economic seminar for court case on localist lawmakers’ Legco oaths, source says

Scores of seats for the press and the public were filled as soon as entry to the courtroom was allowed at around 9am.

A buzz went through the anxious crowd apparently drawn to the court by Sixtus Baggio Leung Chung-hang and Yau Wai-ching when Leung entered the courtroom.

Outside the court building, a media pack was also forming about two hours before the hearing.

9.37am – Lawyers arrive

All lawyers have arrived at the courtroom of the Court of First Instance in Admiralty.

A much-anticipated hearing begins today in the Court of First Instance over an oath-taking controversy which has continued to rock the city’s legislature.

The court battle came about after Chief Executive Leung Chun-ying and Secretary for Justice Rimsky Yuen took the unprecedented step of mounting a legal challenge to disqualify pro-independence lawmakers Sixtus Baggio Leung Chung-hang and Yau Wai-ching on grounds that they had contravened the Basic Law during their swearing-in on October 12.

The duo pledged allegiance to “the Hong Kong nation” and referred to China as “Chee-na”, a variation of the derogatory “Shina” used by Japan during wartime.

Meanwhile, Beijing appears poised to intervene in the matter, with reports stating that the Standing Committee of the National People’s Congress will meet today to discuss an interpretation of the city’s mini-constitution over the issue.

Hong Kong’s top legal body ‘deeply concerned’ over mainland intervention in oath-taking saga

The city’s administration earlier sought but failed to obtain an interim injunction to bar the Youngspiration pair from retaking their oaths, but the judge allowed an application for judicial review against Legislative Council president Andrew Leung Kwan-yuen’s decision to allow a second swearing-in. The two lawmakers have yet to retake their oaths.

Showing the importance it is attaching to the case, the government has hired two senior counsels, Johnny Mok Shiu-luen SC and Benjamin Yu SC, to argue the case. Both have frequently represented the government in judicial reviews. Mok is also a Basic Law Committee member, but he says he will stand aside from committee matters over the case.

Watch: Hong Kong localists force entry into legislature for oaths

Their juniors are Jimmy Ma, former legal adviser for Legco, and Jenkin Suen.

Jat Sew-tong SC acts for the Legco president.

As for the localists, human rights specialist Philip Dykes SC acts for Yau, and Hectar Pun Hei SC for Baggio Leung.

The case is being heard by Mr Justice Thomas Au Hing-cheung.

Speculation that the Hong Kong government would ask the court to adjourn the case to await Beijing’s ruling was quashed last night when the Department of Justice said it would not do so.

Mok said he “very much wanted the court to hear and rule on the case”.

“We are fully prepared,” he said. “I can’t think of anything else that can be of better help.”