Legislative Council oath-taking saga

Top Hong Kong court explains rejection of lawmakers’ appeal bid and reinforces Beijing’s limited role in legal system

Judgment came after the Court of Final Appeal’s decision to reject appeal application by former Youngspiration duo Yau Wai-ching and Sixtus Baggio Leung

PUBLISHED : Friday, 01 September, 2017, 4:41pm
UPDATED : Tuesday, 26 September, 2017, 3:07pm

Hong Kong’s top court on Friday handed down a much-anticipated judgment which explained its rejection of two legislators’ bids to appeal against disqualification and reinforced that the power for Beijing to interpret the city’s mini-constitution was only “in general and unqualified terms”.

The judgment came after the Court of Final Appeal’s decision last week to reject the appeal application by former Youngspiration lawmakers-elect Yau Wai-ching and Sixtus Baggio Leung Chun-hang – who were stripped of their seats after taking their oaths improperly.

Since the case started in the lower courts, a significant part of the battle had centred on an interpretation of the Basic Law, Hong Kong’s mini-constitution, issued by Beijing. It was seen by many as an attempt to pre-empt the city’s courts and hence deliver a blow to the power of the judiciary. But Friday’s ruling insisted the courts’ authority had not been undermined by the preceding interpretation from Beijing.

Ousted Hong Kong lawmakers Baggio Leung and Yau Wai-ching lose final bid to regain seats

Top court judges – Chief Justice Geoffrey Ma Tao-li and permanent Court of Final Appeal judges Roberto Ribeiro and Joseph Fok – wrote that the case, as the lower courthouses had found, would have led to the same conclusion to unseat the pair even without Beijing’s interpretation.

They therefore rejected the lawyers’ argument that the interpretation was to “oust the jurisdiction of the courts”.

However, they reiterated that any interpretation of the Basic Law from Beijing remained “binding” in the local courts – as demonstrated in previous cases.

“It declares what the law is and has always been since the coming into effect of the Basic Law on July 1, 1997,” they wrote, dismissing arguments which challenged the interpretation’s retrospective effect.

Recent criticism has cast aspersions on Hong Kong’s judicial independence, following the jailing of three pro-democracy student leaders including Joshua Wong. The top court acknowledged that the lawmakers’ case had “received widespread publicity” and “evoked strong expressions of opinion and comments”.

Disqualified Hong Kong lawmaker Yau Wai-ching gets threatening note, blade similar to that received by Baggio Leung

The judges stressed they would look only into the legal issues and stay away from the political debate.

The legal case against the disqualified lawmakers was initiated by the head of the former administration, Leung Chun-ying, and Secretary for Justice Rimsky Yuen Kwok-keung, after the localist pair resorted to antics deemed offensive to China at their Legislative Council swearing-in ceremony on October 12 last year.

The pair were accused of failing to comply with the requirements set out in the Oaths and Declarations Ordinance, as well as the Basic Law. The Court of First Instance ruled against them last November, saying they had declined to take their oaths.

But a week prior to that, Beijing’s National People Congress Standing Committee (NPCSC) issued an interpretation of the Basic Law, requiring officials to take their oaths faithfully and accurately, and that those who failed to do so would not be given a second chance. This was seen by critics as a move to pre-empt the court’s ruling.

Watch: localist lawmakers disqualified from Hong Kong’s legislature

While Beijing has no place in the city’s local laws, the Basic Law states that the NPCSC can issue an interpretation of the mini-constitution concerning matters arising from it.

Last week, the pair’s lawyers urged the top court to further “interpret the interpretation” in a more narrow manner given its “extraordinary power”. It also urged the court to look into its retrospective effects.

But on Friday, the judges wrote that these were matters “authoritatively determined” by the top court in previous cases, which led them to arrive at the same conclusions they reiterated in the present judgment.

The top court also disagreed with the pair’s lawyers, who argued the judiciary should stay out of the legislative chamber due to the separation of powers. The court said the present case involved a breach of the constitution, so the court was “duty-bound” to intervene.

The judges also found Leung and Yau had wilfully and manifestly declined the oaths themselves, so there was no use for their counsel to suggest a looser approach when it came to determining one had declined or neglected an oath for the court.

The oath-taking saga rocked the city’s legislature, with four more pro-democracy lawmakers disqualified following Yau and Leung. Among them, at least one, “Long Hair” Leung Kwok-hung, said he would lodge an appeal.