The latest election should have provided Hong Kong people with a rare sense of empowerment. The opposition camp passed the test with flying colours and managed to expand its presence in the legislature despite a paucity of resources and rising repression from Beijing.
What happened in the first week of the new Legislative Council was, however, an anti-climax. Two members from the separatist group Youngspiration, Sixtus Leung and Yau Wai-ching, decided to make a mockery of the oath-taking procedure and triggered a political storm. In short, they refused to pledge allegiance to the political order under Communist China. The secretary-general of the Legislative Council took immediate action and refused to accept their oaths.
Public opinion in general found their action childish, unnecessary and even offensive. The pro-establishment camp and the government sensed the changing mood of the local community and seized the opportunity to appease Beijing. The mainland government has been tortured by its growing concern with the rise of separatism in Hong Kong and was hardly at ease with the fact that candidates with different degrees of separatist intent had managed to attract more than 300,000 votes in the latest election.
To the credit of Andrew Leung, the newly elected Legco president, he did allow the two members to retake the oath, though he hinted this may be the last time he will do so.
Then came the political bombshell. Determined to prove loyalty to Beijing, the government made an unprecedented application for a judicial review and asked for a favourable ruling that would, in effect, invalidate the two members’ status as Legco members.
This is a colossal challenge to the authority of the legislative branch as Legco itself is endowed with measures to rectify the situation. The president is in a position to judge whether the swearing-in is proper or not.
In addition, the Basic Law, the mini-constitution of the Hong Kong Special Administrative Region, also stipulates that members can be censured for a breach of oath with the endorsement of the president and a vote of two thirds of the members attending the meeting. The government’s action is seen by many as a brusque and disrespectful intrusion into the business of the legislative branch and an attack on the tradition of separation of powers.
To the disappointment of the government, the court ruled against its request for an immediate injunction preventing the swearing-in ceremony scheduled on the next day and delayed adjudicating on the case for two weeks.
The pro-establishment camp nevertheless came to the rescue by walking out of the chamber when the oath-taking of Yau and Leung was about to commence. The meeting was forced to adjourn because of the lack of a quorum.
The saga continues. What will happen next?
With the court hearing scheduled for November 3, it is unlikely that the pro-establishment camp can maintain the walk-out strategy that long. There are at least two more council meetings before that date and no one can tell how long it will take the court to reach a decision.
The members are also under public pressure as this would cause a major disruption to the council business. It is thus highly probable that the two members will have a chance to conclude their business before the court ruling.
It is however possible that the localist duo may do the government a great favour by shooting themselves in the foot again. Given their unrepentant attitude and naivety in political judgement, they may choose to stick to their lines.
The general public may have little sympathy for them this time, in which case a decision by the council president to invalidate their membership would be seen as justified. Problem solved, though CY Leung might not be the happiest person in this scenario as Andrew Leung would be able to claim all the credit.
Yet, if Yau and Leung come to their senses and behave properly, the government can only pray for a favourable judgement from the court. The outcome is hardly preordained though. It would be tempting for the government to request the National People’s Congress’ interpretation of Basic Law, as the court must follow its ruling and its sympathy for the government’s concern on localism is guaranteed. There might be a legal complication as the court might opine that adjudication of the case has nothing to do with Basic Law. Constitutionally speaking, there should then be no ground for the NPC’s interpretation.
Yet, the NPC would probably be flexible on the constitutionality of the government’s prospective request and this debate might be purely academic.
Alternatively, the NPC could simply initiate an interpretation of a specific provision of the Basic Law. The likely candidate would be Article 104 that stipulates members of Legco must swear to uphold the Basic Law and pledge allegiance to the HKSAR of the People’s Republic of China.
Hong Kong legal battle over lawmakers’ oath-taking goes to the heart of city’s unique constitutional status
Either way, the government would win the case. Nevertheless, while Beijing might win this particular battle against the separatists, doing so could contribute to failure in the war to win the hearts and minds of Hong Kong’ people.
Ray Yep is professor of politics at City University of Hong Kong