NOV. 29, 2016
HONG KONG — Two separatist Hong Kong lawmakers lost their appeal Wednesday against a ruling disqualifying them from office because they altered their oaths with an anti-China insult.
The Court of Appeal sided with a judgment earlier this month barring Sixtus Leung and Yau Wai-ching of the Youngspiration Party from taking their seats in the city’s Legislative Council.
It agreed with the High Court’s decision two weeks ago that the two effectively declined to take the oath, violating a section of the semiautonomous Chinese city’s Basic Law constitution covering oaths taken by officials.
The three-judge panel said its ruling was backed up by Beijing’s own controversial interpretation of the Basic Law.
In an act of defiance at the swearing-in ceremony last month, Leung and Yau modified the oath, which requires pledging allegiance to Hong Kong as a part of China, by referring to the “Hong Kong nation” and using a derogatory term for China. They also displayed a flag that said “Hong Kong is not China.” Yau, 25, cursed and Leung, 30, crossed his fingers.
“There can be no innocent explanation for what they uttered and did,” the ruling said. “What has been done was done deliberately and intentionally.”
The actions infuriated China’s central government in Beijing, which responded with a constitutional interpretation that Hong Kong courts are required to enforce. But in an unprecedented move, the interpretation was released before the lower court came to a decision, sparking fears that Beijing was eroding Hong Kong’s considerable autonomy and independent judiciary.
Leung and Yau said they are considering appealing to Hong Kong’s top court, the Court of Final Appeal, but had to take into account mounting legal costs and whether the move would trigger another interpretation by Beijing.
Leung and Yau were among a group of lawmakers newly elected in September amid a rising tide of anti-China sentiment driven by fears that Beijing is tightening its grip on the former British colony.
The ruling comes after the Hong Kong government indicated it plans to widen its campaign against the opposition by taking action against a third pro-democracy lawmaker, Lau Siu-lai, who read her pledge in an exaggeratedly slow manner in an apparent protest.
The Justice Department said in a brief statement Tuesday that the government plans to “issue proceedings” against Lau, without further details. Unlike the other two, Lau was allowed to retake her pledge later.
From The South China Morning Post
An appeal court in Hong Kong on Wednesday dealt another legal blow to two localist lawmakers and upheld a previous ruling to disqualify them from office, paving the way for a final appeal that could test Beijing’s constitutional intervention on the city’s political freedom.
In quashing the appeal brought by Sixtus Baggio Leung Chung-hang and Yau Wai-ching, who swore allegiance to a “Hong Kong nation” when taking the oath, the three Court of Appeal justices unanimously confirmed the applicability of Beijing’s “true and proper” interpretation of the Basic Law.
The ruling, however, is unlikely to be final, as the judges expect the pair will seek to bring the case to the Court of Final Appeal.
Indeed, they have reserved a slot on Thursday to hear their applications for leave to appeal.
However, in an unexpected U-turn, Leung and Yau reframed their earlier pledge that they must take their case to the Court of Final Appeal, saying after the verdict on Wednesday that they were “actively considering” it.
Leung, who said he respected the judgment but disagreed with it, said their lawyers had already written to the court to inform judges that they reverse their rights to appeal.
He said his main worry was that taking their appeal to the top court might touch upon legal arguments might cause the leading justices to seek further interpretation from Beijing, and thus damage the system.
“It boils down to whether [seeking] the rule of law and justice or the stability of a system more important,” he said.
Another concern, he added, is a possible security cost they might be asked to fork out, which could amount to a “7-digit figure”, in order to pursue their ultimate appeal. He said they would reach their decision as soon as possible, and would not rule out applying to the court to temporarily prevent the Legco from gazetting their disqualifications, which could happen as soon as next Tuesday.
The case centred on whether Leung and Yau should be disqualified over their anti-China antics during the Legislative Council swearing-in ceremony on October 12. They used allegedly derogatory language in swearing allegiance to Hong Kong as part of China and laid out a banner saying “Hong Kong is not China”.
The ruling is a political victory for both the Hong Kong and Beijing governments, who have stepped up their rhetoric against advocates for the city’s independence since the pair were elected in September.
In a summary from the court on Wednesday, the court reaffirmed the lower court’s ruling.
The summary read: “When a constitutional requirement in the Basic Law is in issue, the common law doctrine of separation of powers and non-intervention must give way to the court’s constitutional duty to apply the Basic Law.”
The appeal was dismissed unanimously by a panel of three judges, including Mr Justice Cheung, Vice-president of the Court of Appeal Mr Justice Johnson Lam Man-hon, and Mr Justice Jeremy Poon Shiu-chor.
It added that the immunity of lawmakers from lawsuits did not extend to covering them whilst taking their members’ oath.
The Court of Appeal ruling will also have implications for future cases, including one against another lawmaker Lau Siu-lai, which the Department of Justice intended to file after this ruling. It has become a binding judgment for the Court of First Instance to follow when it adjudicates a string of other cases already launched by citizens against a score of pan-democratic and pro-establishment lawmakers.
The court ruled that “there is no question of allowing them to retake the oath as a matter of law”.
Solicitor Jonathan Man Ho-ching, who represented Leung, said he would discuss with his client whether to take the case to the Court of Final Appeal.
The court ruled the duo’s seats were “automatically vacated”, though details of by-elections were unlikely to be announced before the top court has a final say.
Earlier, Leung’s lawyer also argued that the interpretation went as far as amount to amending the Basic Law. He also urged the court to rule that such an interpretation did not have retrospective effect as it had been issued after the oath was taken.
But in a 41-page judgement, chief judge of the High Court Mr Justice Andrew Cheung Kui-nung cited the interpretation should be applied retrospectively to any cases to be adjudicated after the handover in 1997, even though the issue decided in the case may have taken place before the interpretation.
He cited a Court of Final Appeal authority, saying that “it declared what the law has always been [since 1997].”
He added, more importantly, that the Court of Appeal did not have jurisdiction to rule on the issue whether the interpretation – once officially promulgated by NPCSC – was an amendment. He said Leung’s lawyers failed to address the court on this “fundamental questions of jurisdiction.”
He also ruled that the argument of the interpretation being an amendment did not “even get off the evidential ground”.
He noted the interpretation was given by Beijing, which operates in a civil law system, but the Hong Kong courts uses a common law system. But Cheung said during the appeal that no details about mainland’s civil system were submitted to court as evidence for consideration.
“The view of a common law lawyer, untrained in the civil law system, particularly the civil law system practised on the mainland is, with respect, simply quite irrelevant,” Cheung said.
The Court of First Instance earlier disqualified the pair, finding them to have “declined” to take the oath faithfully. At the appeal hearing last week, Chief Judge of the High Court Mr Justice Andrew Cheung Kui-nung pushed the parties to address Beijing’s ruling on oath-taking.
The National People’s Congress Standing Committee made a ruling before the lower court’s judgment, saying the relevant Basic Law article required an oath-taker be “sincere” and “solemn”. Non-compliance would mean immediate disqualification, it ruled.
Despite Mr Justice Cheung’s suggestion, neither the localists nor the government focused their arguments on the interpretation.
Leung’s lawyer, Hectar Pun SC, made a U-turn and gave up his argument that the Beijing ruling had amounted to “legislating” rather than “interpreting” the law, after the judge asked for mainland law experts to support his claim.
They ruled that the interpretation was binding.
Philip Dykes SC, for Yau, did not want to go into the intricacies of the interpretation, maintaining his position that the court, under the principles of separation of powers and non-intervention, should refrain from stepping into what he called an internal affair of the legislature.
Benjamin Yu SC, for the government, said the Beijing ruling was binding on local courts and should be adopted to disqualify the pair immediately. He earlier used common law principles to argue that the duo had indeed “declined” to take the oath under local legislation.
Additional reporting by Joyce Ng