Hong Kong Basic Law

Hong Kong government has not been told if Beijing will intervene to ban pro-independence lawmakers

As the High Court retires after a hearing on a judicial review to ban the two localists, a mainland expert says National People’s Congress Standing Committee will step in on Monday

PUBLISHED : Friday, 04 November, 2016, 12:05am
UPDATED : Friday, 04 November, 2016, 10:57am

The Hong Kong government has not received word from Beijing that it is intervening in the oath-taking row to disqualify two pro-independence lawmakers despite such a move being widely reported in the media, the chief executive’s lawyers told the High Court on Thursday.

The counsel also asked for a speeded-up ruling by the court, which retired after a full-day hearing on a judicial review sought by the government in a bid to ban the duo and hold by-elections for their seats. Even as the case was heard, a mainland Chinese expert who advises Beijing on Hong Kong affairs but who declined to be named, told the Post that the mainland’s top legislative body was expected to deliver its ruling on Monday.

Watch: Baggio Leung arrives in court

The case centres on a judicial review to disqualify Sixtus Baggio Leung Chung-hang and Yau Wai-ching because they used derogatory language to insult China during their oath-taking three weeks ago while pledging allegiance to “the Hong Kong nation”.

They have been barred by the Legco president from attending meetings but insist they have the right to remain in the chamber as duly elected lawmakers.

Benjamin Yu SC said the government “has not requested” the National People’s Congress Standing Committee to exercise its power to interpret the Basic Law.

“The HKSAR government has sought confirmation from the Central People’s Government as to these reported matters,” Yu read. “Up to this moment, the Hong Kong government has not received any confirmation from the [central government].”

He would inform the court as soon as possible if his client received any confirmation, he added, asking the court to hear the case “irrespective” of the reported matters.

Watch: Localists force entry into legislature to retake oaths

Under the Basic Law, Hong Kong enjoys judicial independence and local courts should seek a ruling from Beijing only over affairs the central government is responsible for or which pertain to its relationship with Hong Kong.

The localists’ lawyers argued on Thursday that the matter should rest entirely within the legislature because of the separation of powers enjoyed in the city.

Philip Dykes SC, for Yau, said any “misbehaviour” of lawmakers would be subject to political process, not a judicial process, as they can be disqualified on a vote passed by two-thirds of lawmakers present under Article 79 of the Basic Law.

But Yu countered that the separation of powers was subject to the “constitutional requirement” of lawmakers taking the oath as prescribed by the law under Article 104 of the Basic Law.

Article 104 says lawmakers must, in taking their oaths, uphold the Basic Law and swear allegiance to Hong Kong as part of the People’s Republic of China.

Judge Thomas Au Hing-cheung said he would deliver his ruling “as soon as practicable”. After Yu suggested he make a ruling first and hand down a judgment later, Au said he would “think about it” .

In Beijing, Basic Law Committee vice-chairwoman Elsie Leung Oi-sie declined to tell the Post if the body met on Thursday, saying that she did not want to be interviewed.

It was announced on Thursday that the Standing Committee’s Legislative Affairs Commission would hold a press conference on Monday, after the Standing Committee voted on several legislative amendments.

The expert who expected the ruling on the oath-taking to be delivered then said it would be better if Beijing’s interpretation of the Basic Law could pre-empt the court’s ruling if the outcome was the government losing. Otherwise, “the shock would be bigger if an interpretation is made after the Hong Kong government loses in the judicial review.”

But the chairwoman of the city’s Bar Association, Winnie Tam Wan-chi, warned this would deprive local courts of a chance to adjudicate and damage the judicial system.

Additional reporting by Tony Cheung in Beijing