Hong Kong Contends With New Reality: “Beijing’s Interpretation of Law is Binding”

High Court Chief Judge Andrew Cheung Kui-nung says this would save them need to even look at relevant local legislation

By Joyce Ng and Chris Lau

South China Morning Post

Friday, November 25, 2016, 5:43 p.m.
 

The judges presiding over the oath-taking appeal indicated they would hand down a decision early next week after one of them expressed “unease” at lawyers for both the government and the localists did not start their arguments by applying Beijing’s controversial yet binding interpretation of the Basic Law.

The court reserved its judgement, to be delivered next Tuesday or Wednesday. The judges, expecting the losing party – whichever it will be – to make an appeal, said they would hold a hearing for that application the day after.

 Disqualified localist lawmaker Sixtus Baggio Leung Chung-hang arriving at the High Court. Photo: Chris Lau

Earlier on Friday, as Benjamin Yu SC advanced his arguments asking the court to affirm the lower court’s decision to disqualify lawmakers-elect Sixtus Baggio Leung Chung-hang and Yau Wai-ching, he went into the details of several local laws on oath-taking, coming to the interpretation of the Basic Law only in the last part of his submission.

At this point, High Court Chief Judge Andrew Cheung Kui-nung cut in, saying parts of the Beijing interpretation were clear enough for Yu to arrive at his conclusion.

The judge said he felt “uneasy” that the lawyers were using the common law approach.

 Disqualified localist lawmaker Sixtus Baggio Leung Chung-hang arriving at the High Court. Photo: Chris Lau

“But here it is the issue of whether the interpretation is binding or not binding,” Cheung said.

“We don’t even need to look at Section 21 [of the Oaths and Declarations Ordinance],” he added.

The judge said that the Beijing interpretation, which the lower court and the localists’ lawyers had wanted to avoid, would be binding on the court.

Fellow justice of appeal Johnson Lam Man-hon added: “I can understand the reluctance. It’s just like asking a footballer to use his hand to score.”

The third justice on the court, Mr Justice Jeremy Poon Siu-chor, added: “We just wonder why you don’t start with the interpretation – after all, you stand for the chief executive.”

The barrister gave a light-hearted response: “If I were a PRC lawyer, the argument would have been shorter.”

Cheung noted that the lawyer could run alternative arguments to achieve the same result.

The hearing on Friday is also the first time the government will reveal its position on the interpretation, which was handed down by Beijing on November 7 in an apparent bid to pre-empt a local court’s ruling on whether then localist lawmakers-elect Baggio Leung and Yau should be disqualified for using terms deemed derogatory to the mainland during their swearing-in ceremony last month.

Yu said there was no basis to suggest Beijing’s interpretation went as far as amounting to amendments to the city’s mini-constitution, adding that local courts would be bound by whatever legal explanations Beijing conferred upon the city.

Benjamin Yu compared the NPC Standing Committee to the British parliament. Photo: Felix Wong

“It’d be difficult to conceive an argument that Hong Kong Court can go beyond the interpretation,” he said, likening the National People’s Congress Standing Committee to the parliament in Britain, which he said boasted ultimate supremacy.

Yu added it would “simply be wrong to say” the interpretation had no retrospective effect, which, if the Court of Appeal justices accepted, might have implications for a string of legal challenges arising from the interpretation. Several members of the public have lodged legal bids to disqualify more than a dozen lawmakers since start of the present case.

Baggio Leung and Yau were disqualified by the Court of First Instance two weeks ago after an unprecedented judicial challenge filed by the city’s chief executive.

The court found the duo to have “declined” to take their oaths faithfully due to their anti-China antics during the swearing-in ceremony on October 12.

The Court of Appeal hearing started after the mainland’s top legislative panel interpreted Article 104 of the Basic Law, which laid down rules for oath-taking. The intervention was seen in various quarters as a blow to the city’s judicial independence, though the lower court judge said he would have arrived at the decision to bar the pair “with or without” the ruling.

On Thursday, Philip Dykes SC, for Yau, argued that it was “premature” for the court to intervene, insisting that Legco president Andrew Leung Kwan-yuen had yet to make a decision on disqualifying the localists.

Hectar Pun Hei SC, for Baggio Leung, said the court had completely no jurisdiction.

But their arguments did not seem to impress the judges. Mr Justice Cheung suggested the judiciary should have the power to intervene in the legislature’s affairs on constitutional grounds, saying “the Basic Law trumps the common law”.

Cheung also suggested that the lawyers address the Beijing ruling.

Pun originally argued that the Beijing ruling had gone beyond the scope of an interpretation and effectively amended Hong Kong law. But after the judges urged him to support his claim with evidence – and even assistance from civil law experts – the barrister made a U-turn and decided not to pursue his argument “to avoid a crisis”.

 Hectar Pun Hei SC, for Baggio Leung, appears at the High Court. Photo: Felix Wong

Speaking outside court, Baggio Leung said he had confidence in the city’s judiciary.

Referring to Beijing’s interpretation of the Basic Law, he said: “Like many Hongkongers, [we] hope the local court can give a response on the matter.”

When asked if this could turn into a full-blown constitutional crisis for the city, he responded: “It already is.”

He and Yau were also asked for their views on comments made earlier on Friday by former Hong Kong governor Chris Patten, who advised the city to stay clear of pro-independence views and blasted the pair for turning a serious matter into “a sort of student game”.

“I respect Chris Patten’s point of view. But whether it is workable or not, Hong Kong independence, this is at least a number of Hong Kong people’s wish,” said Leung, who received more than 35,000 votes in the Legco elections in September.

Chris Patten slams disqualified localist duo, says Hong Kong pro-independence antics ‘dilute support’ for democracy

Hong Kong’s former governor has torn into pro-independence activists, saying it would be a tragedy if the “moral high ground” achieved by student leaders in the 2014 Occupy protests was lost because of pro-ind

He said it was inevitable that any campaign fighting for democracy, self-determination or independence in Hong Kong would involve sorting out the city’s relationship with Beijing.

The former lawmaker-elect said he and Yau had not yet had time to deal with Legco’s decision to require them to return HK$930,000 each for salaries and costs they had claimed in advance, criticising it as “childish”.

The duo have raised about HK$300,000 for their legal costs, they said.

http://www.scmp.com/news/hong-kong/politics/article/2049181/judge-oath-taking-appeal-uneasy-over-lawyers-lack-focus

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One Response to “Hong Kong Contends With New Reality: “Beijing’s Interpretation of Law is Binding””

  1. daveyone1 Says:

    Reblogged this on World Peace Forum.

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