Posts Tagged ‘Legislative Council elections 2016’

Hong Kong judicial review over potential disqualifications for elected officials who refused to swear and oath to China continues — No word on how and when China may step in

November 3, 2016

Judicial review over potential disqualification of Sixtus Baggio Leung and Yau Wai-ching to continue amid reports of National People’s Congress stepping in

South China Morning Post
Thursday, November 3, 2016, 5:28 p.m.

4.53pm – Ruling promised soon

Before the hearing closes, Mr Justice Thomas Au Hing-cheung said he would deliver his ruling “as soon as practicable”.

Yu suggested the judge issue a ruling first and hand down his judgement at a later date – an apparent reference to the prospect of an interpretation by Beijing.

The judge said he would “think about it”.

4.30pm – ‘Chief executive does have role to play’

Benjamin Yu responds to arguments put forward by the other parties.

He said he was “very surprised” at Pun’s argument that the chief executive was in no position to put his name on the case.

“There is a duty under Articles 48 and 2 of the Basic Law [for the Hong Kong government] to be responsible for the implementation of the Basic Law,” Yu said. “The chief executive therefore does have a special obligation in terms of ensuring compliance.”

“That is a very important provision concerning how [the principle ‘one country, two systems’ [operates],” he added.

3.15pm – Legco president’s decision, not court’s

Hectar Pun, sharing Philip Dykes’ arguments, said Article 79 “exclusively” provided for the conditions to disqualify a lawmaker.

He noted that the phrase in the article, “the president shall declare” a lawmaker no longer qualified for office under seven conditions, meant that it was at the president’s discretion, rather than being the court’s decision to make.

 Hectar Pun SC said on Thursday the chief executive should not be participating in the case. Photo: David Wong

3.05pm – Chief executive’s involvement means use of taxpayer’s money, lawyer says

Hectar Pun SC, counsel for Sixtus Baggio Leung Chung-hang, began by stating that the chief executive was wrongly involved in the case.

[Leung Chun-ying] still sued in the capacity as an elector

He cited Section 73(5) of the Legislative Council Ordinance, which reads: “Proceedings brought under this section by a person other than the Secretary for Justice are to be stayed until the person has given security for all costs that the person may be ordered to pay to any witness giving evidence in the proceedings on that person’s behalf or to a defendant.”

Following that logic, Pun noted, the chief executive’s participation in the case meant extra taxpayers’ money would be spent on the matter.

“A person suing in his personal capacity makes no reference as to whether he is an elector in the constituency … but [Leung Chun-ying] still sued in the capacity as an elector,” Pun said.

The chief executive lives on Hong Kong Island. Baggio Leung and Yau were elected in New Territories East and Kowloon West constituencies respectively.

2.55pm – Disqualification to be through political, not judicial process

As Philip Dykes, counsel for Yau Wai-ching, continued his argument on the separation of powers, the judge put a question to him.

Judge Au asked the lawyer if, following the latter’s logic, only Legco and not the court could disqualify a lawmaker due to misbehaviour, and the president made no decision about it, what would the solution be?

The solution then is … the issue must stay [inside Legco]

“It will go on like this. When somebody blatantly not complies….” Au wondered aloud.

Dykes replied: “The solution then is … the issue must stay [inside Legco].”

“One would presume one would not have a president who will be so weak,” he continued. “Members would call for [him to make a decision].”

Dykes argued it would be a “theoretical rather than real” situation where the president made no ruling, because Legco members would pile sufficient pressure on him to do so. Otherwise, the president would face a vote of no confidence.

“It will be through a political process, not a judicial process. That is consistent with the separation of powers,” he concluded.

12.45pm – Yau’s lawyer says even disqualification is matter for Legco to handle

Philip Dykes SC, counsel for Yau Wai-ching, argued that the matter was entirely within the legislature’s purview.

 Philip Dykes SC is representing Yau Wai-ching. Photo: David Wong

He said there was a “clear separation of powers structure” in Chapter Four of the Basic Law and the independence of the legislature. The chapter provides for lawmakers’ immunity from legal action. Article 78, a “neglected” clause in the mini-constitution, provides for their freedom to access the Legco chamber, the lawyer added.

The oath-taking acts of the localists, even if considered “misbehaviour” subject to disqualification under Article 79 of the Basic Law, still had to be handled by a Legco procedure, Dykes said.

That article says the lawmaker will be disqualified by a vote of two-thirds of the members of the Legco present.

The hearing will continue at 2.30pm after a break for lunch.

12.30pm – Legco president had power to let duo retake oath

Elaborating on his point that the Legco president should not be brought into the case, Jat argued that the president had the power to let the duo retake the oath.

This was despite Andrew Leung later changing his mind and deciding not to give the duo a second chance.

Jat pointed to Article 72 of the Basic Law and rules of procedures, which lay down the president’s power in relation to the meeting agenda, membership and meeting proceedings.

 Jat Sew-ton SC (centre) said Legco president Andrew Leung should not be troubled by the present case. Photo: David Wong

The lawyer said Leung had exercised his power under Article 72, and he should not be troubled by the present case over whether he should and could disqualify the two or not.

Even if a lawmaker were to be disqualified “because he has become a murderer”, it would still need a vote passed by a two-thirds majority in Legco, Jat said, citing Article 79 of the Basic Law.

“How can an official, the secretariat-general or the president just make that decision [without regard to that article]?”

Jat also countered Yu’s argument over the function of the Legco president, questioning why he asserted that Leung, while not being a final arbiter in the matter, was still obliged to make a decision to invalidate the duo’s vows.

12.15pm –Legco president ‘unnecessarily and wrongly’ brought into case, his lawyer argues

Jat Sew-tong SC began his submission for Legco president Andrew Leung.

The counsel, who robustly argued for the “constitutional rights” of the lawmakers to perform their duties in the leave hearing, today distanced the president’s case from theirs.

He’s here because he’s brought in [as] a respondent unnecessarily and wrongly

Jat said the president’s only concern was that he performed his duty in a fair manner and in accordance with the Basic Law.

“The president has no concern and in fact does not condone the actions of the first and second defendants [Youngspiration duo],” the lawyer said. “He’s here because he’s brought in [as] a respondent unnecessarily and wrongly.”

Jat said there were no issues in the case the president needed to address, and they all concerned the two lawmakers only.

He further argued that by joining the Legco president in the case, the government “gives the wrong impression that there is intention for the executive [branch] to exert pressure on [the] legislature”.

“One should carefully avoid any action of political sensitivity,” Jat warned. “But I have heard nothing from my learned friend [counsel for the government] to answer that point.”

11.34am – ‘Difficult to imagine’ official declining to take oath

Going through the Oaths and Declarations Ordinance, which not only covers legislators but also principal officials and judges, Benjamin Yu compared the case to an official declining to take the oath.

“It will be difficult to imagine. If [the principal official] declines to the oath, he probably declines to be appointed. The [current question relating to the duo] will not arise, because the person will simply not be appointed.”

11.10am – Lawmakers’ immunity doesn’t cover oath taking, lawyer argues

Arguing that the Youngspiration duo should not be immune from legal action, Benjamin Yu said lawmakers’ immunity as provided for by the Basic Law covers only statements, not their oath taking.

Their freedom of speech is also not an issue here because the question is whether what they took was a proper oath at all, he added.

“Immunity is a shield, but it does not enable you to discharge from the constitutional duty [to take the oath],” the lawyer said, adding that the shield applies only when a lawmaker is sued for making discriminatory remarks in Legco meetings.

 The case has drawn attention from both local and foreign media. Photo: David Wong

10.45am – City’s separation of powers different from that in American, Australian models

After arguing the principle of non-intervention was conditional, Benjamin Yu, citing an article published in a Hong Kong law journal, argued that the separation of powers enjoyed in Hong Kong was different from that in the American and Australian models.

He said the Legco president did not have the final and exclusive say on whether Baggio Leung and Yau Wai-ching satisfied or breached Article 104 and the Oaths and Declarations Ordinance on their oath taking. The court has the final say, he added.

As for the British model, the country does not have something like Article 104, Yu said.

Furthering his argument that the court should have the final say, the lawyer said that if the chief executive failed to take the oath properly, the court should also handle any complaint, even though the administrator of the oath was a central government official.

At this point, Judge Au gave a light response: “In that case, I’d probably receive another application for leave [for judicial review]”.

His remark triggered giggles in the courtroom.

Basic Law Article 104

When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.

10.35am – No space in courtroom

Dozens of members of the public who failed to get a seat in the courtroom are now watching the live broadcast of the hearing at the public area outside the court. The area is full now and no one can go in.

10.30am – ‘In Hong Kong, Basic Law is supreme’

Noting the localists’ arguments that the judiciary should not intervene in the legislature, Benjamin Yu said the principle of non-intervention is “subject to constitutional requirement”.

“In Hong Kong, the Basic Law is supreme. Legco is not supreme, unlike in some other jurisdictions,” he said.

 Protesters outside the High Court on Thursday. Photo: David Wong

“In the instant case, we are not concerned with the internal workings of Legco, for example, filibustering … We are concerned with Article 104 of the Basic Law.”

“The court is the protector of the provision in the constitution, and Article 104 is what the Hong Kong court will pay heed to. The principle of non-intervention cannot trump Article 104.”

10.15am – Protesters don’t trust Hong Kong’s rule of law

About 10 members of the pro-Beijing Treasure Friendship Group protested outside the High Court, urging the top national legislative body to interpret the Basic Law.

“Yau and Leung should not be given a chance to retake their oaths as they will spread pro-independence ideas in the Legislative Council,” group member Sam Cheng Kwong-fung said.

“We do not have trust in Hong Kong’s rule of law and the easiest way is to let the NPCSC interpret the law straight away,” he added.

10am – Government contacted Beijing but can’t confirm if NPC is stepping in

The Hong Kong government told the court that though media reports had said the mainland’s top legislative body is going to intervene in the row, it has not received any such news from Beijing.

 Benjamin Yu SC said the Youngspiration duo’s behaviour was tantamount to declining to take their oath. Photo: David Wong

It has written to the central government to seek a confirmation of the interpretation of Article 104 of the Basic Law concerning the oath taking requirements, a lawyer for the administration told the High Court.

But the local government had not received any confirmation from Beijing by the time the judicial review began, Benjamin Yu SC said.

Referring to the way Baggio Leung and Yau took their oaths in Legco last month, Yu said the manner and form of taking an oath had been clearly stated and that lawmakers had to do so in accordance with the rules.

There can’t be an excuse [for breaching the rules]

“There is no excuse. There can’t be an excuse [for breaching the rules],” Yu said.

The lawyer added that the duo’s behaviour was tantamount to “declining” to take an oath – a breach which may lead to disqualification.

“They have declined [to take oaths],” he said. “Each of them has declined.”

“To add a personal note, I saw in [the] news that a Hong Kong University academic had an unfounded speculation that because the Hong Kong government has no confidence in the court, it has sought the NPCSC interpretation. That is the furthest from the truth.”

9.58am – Media and public pack the courtroom

The hearing triggered by the Youngspiration duo’s antics has drawn widespread attention from locals and the international community alike.

In anticipation of a mass turnout for the judicial review hearing, the courts made special arrangements for allocating seats in the courtroom.

Seating was provided on a first-come-first-served basis, leading to long queues being formed as early as 7am – three hours before the scheduled hearing.

Scores of seats for the press and the public were filled as soon as entry to the courtroom was allowed at around 9am.

A buzz went through the anxious crowd apparently drawn to the court by Sixtus Baggio Leung Chung-hang and Yau Wai-ching when Leung entered the courtroom.

Outside the court building, a media pack was also forming about two hours before the hearing.

9.37am – Lawyers arrive

All lawyers have arrived at the courtroom of the Court of First Instance in Admiralty.

A much-anticipated hearing begins today in the Court of First Instance over an oath-taking controversy which has continued to rock the city’s legislature.

The court battle came about after Chief Executive Leung Chun-ying and Secretary for Justice Rimsky Yuen took the unprecedented step of mounting a legal challenge to disqualify pro-independence lawmakers Sixtus Baggio Leung Chung-hang and Yau Wai-ching on grounds that they had contravened the Basic Law during their swearing-in on October 12.

The duo pledged allegiance to “the Hong Kong nation” and referred to China as “Chee-na”, a variation of the derogatory “Shina” used by Japan during wartime.

Meanwhile, Beijing appears poised to intervene in the matter, with reports stating that the Standing Committee of the National People’s Congress will meet today to discuss an interpretation of the city’s mini-constitution over the issue.

The city’s administration earlier sought but failed to obtain an interim injunction to bar the Youngspiration pair from retaking their oaths, but the judge allowed an application for judicial review against Legislative Council president Andrew Leung Kwan-yuen’s decision to allow a second swearing-in. The two lawmakers have yet to retake their oaths.

Showing the importance it is attaching to the case, the government has hired two senior counsels, Johnny Mok Shiu-luen SC and Benjamin Yu SC, to argue the case. Both have frequently represented the government in judicial reviews. Mok is also a Basic Law Committee member, but he says he will stand aside from committee matters over the case.

Watch: Hong Kong localists force entry into legislature for oaths

Their juniors are Jimmy Ma, former legal adviser for Legco, and Jenkin Suen.

Jat Sew-tong SC acts for the Legco president.

As for the localists, human rights specialist Philip Dykes SC acts for Yau, and Hectar Pun Hei SC for Baggio Leung.

The case is being heard by Mr Justice Thomas Au Hing-cheung.

Speculation that the Hong Kong government would ask the court to adjourn the case to await Beijing’s ruling was quashed last night when the Department of Justice said it would not do so.

Mok said he “very much wanted the court to hear and rule on the case”.

“We are fully prepared,” he said. “I can’t think of anything else that can be of better help.”




Chinese Communist Party Mouthpiece “People’s Daily” Attacks Lawmakers for Not Taking Oath — Court case to disqualify localist duo

November 3, 2016

People’s Daily article entitled “Hong Kong independence a harm to the city and must not be tolerated” was published on Thursday

By Raymond Yeung

Thursday, November 3, 2016, 4:05 p.m.

Hong Kong independence advocates have not only hurt the sentiment of China’s population but the whole Chinese race around the world and must be punished by law, a commentary by the People’s Daily has said as the Beijing-controlled newspaper stepped up its attack against two localist lawmakers amid the oath-taking row.

While similar commentaries were regularly published in the overseas edition of People’s Daily, the 1,000-word article, titled “Hong Kong independence a harm to the city and must not be tolerated”, appeared in the mainland print version on Thursday.

Without naming names, the article slammed the behaviour of some “newly elected lawmakers” by promoting independence during the oath-taking ceremony.

“Their acts have seriously violated the bottom line of ‘one country, two systems’, the national constitution, the Basic Law and relevant provisions in Hong Kong,” it read.

“Such rhetoric has always been treated by mainstream opinion in the city as a joke, a farce and a lunatic’s dream. But certain people – out of unspeakable political motives – resist one country and the central government … and promote separatism under the disguise of localism … and even collude with Taiwanese independence forces.”

While anti-government protesters have long cried foul over Beijing’s interference in Hong Kong matters as eroding the city’s core values and the rule of law, the commentary argued the harm was in fact caused by independence calls.

“In a society known for its stringent rule of law, if we tolerate such independence calls, it would certainly deal a blow to Hong Kong’s core values and rule of law, with the negative impact hard to quantify,” it lashed out at the independence champions.

While the writer called on authorities to handle the issue with the Basic Law and maintain its integrity, it stopped short of mentioning a possible interpretation of the mini constitution by the National People’s Congress Standing Committee.

“The central government has unswervingly maintained its ‘one country, two systems’ policy 19 years after the handover, fully exercising tolerance and restraint when handling Hong Kong matters. But on issues involving national interests, it will not just sit and let the problem grow,” it warned.

At least seven articles have been published in various editions of People’s Daily since the oath-taking controversy broke out last month, with each piece taking a stronger stance as the incident developed.

 Beijing’s Hong Kong liaison office director, Zhang Xiaomoing. Photo: SCMP Pictures

The latest article echoed comments made by Beijing’s Hong Kong liaison office director Zhang Xiaoming on Tuesday, saying the words of the localist lawmakers had crossed the bottom line of the “one country two systems” and seriously violated the country’s constitution and the Basic Law.

“Any calls and actions advocating the Hong Kong independence must be sanctioned by the laws,” he said.

On October 12, Youngspiration lawmakers Yau Wai-ching and Sixtus Baggio Leung Chung-hang swore allegiance to the “Hong Kong nation” and pronounced China as “Chee-na” – mimicking the offensive term “Shina” used by the Japanese during war time – while swearing in at the Legislative Council. Their oaths have since been invalidated.

On the possibility of an interpretation of the Basic Law by Beijing’s top political body, Bar Association chairwoman Winnie Tam Wan-chi said she was shocked to hear the development as there was no such indication during a meeting with Basic Law Committee chairman Li Fei last week.

Speaking on radio on Thursday, she also gave her backing to Justice Secretary Rimsky Yuen Kwok-keung, saying he held the same opinion as the legal sector – that an interpretation was unnecessary.

 Secretary for Justice Rimsky Yuen Kwok-keung. Photo: Dickson Lee

Tam also felt the matter would not be solved even if Yuen tendered his resignation.

She reiterated that an interpretation from Beijing would give Hongkongers the impression that the matter could not be settled in the court, tarnishing the judicial system’s integrity.

“The worst case scenario though would be the Standing Committee overturning the court’s decision by issuing a contradicting verdict after judges make their ruling,” she added.



 (November 2, 2016)

 (November 1, 2016)

Hong Kong’s Legislative Council Brought To A Halt Again By Rebel Lawmakers Who Won’t Swear Loyalty to China

November 2, 2016

Sixtus Baggio Leung Chung-hang and Yau Wai-ching rush chamber floor, get barred from entering side room, and police and medical help sought

By Jeffie LamJoyce NgShirley ZhaoNaomi Ng, and Tony Cheung
South China Morning Post

Wednesday, November 2, 2016, 4:13 p.m.
Refusal To Swear an Oath to China: Hong Kong Lawmakers Tie Up Legislative Council Again, November 2, 2016

Key points today:

> The fourth meeting of the Legislative Council was adjourned by Legco president Andrew Leung Kwan-yuen around 1.30pm today after four security guards were hurt when they tried to block localist lawmakers Yau Wai-ching and Sixtus Baggio Leung Chung-hang from entering a conference room where the lawmaking body had relocated.

 Sixtus Baggio Leung Chung-hang (restrained in group) and Yau Wai-ching (with microphone) on the chamber floor. Photo: Felix Wong

> At Andrew Leung’s request, a team of police officers arrived at the chaotic scene, and three security guards were sent to hospital.

> The Legco president rejected Democratic Party lawmaker James To Kun-sun’s request to move an urgent question about interpretation of the Basic Law, Hong Kong’s mini-constitution. To cited media reports the National People’s Congress Standing Committee was considering the possibility.

 Yau Wai-ching speaking after being taken away from the Legco chamber in Tamar. Photo: Sam Tsang

> In the main chamber, Andrew Leung suspended Legco’s meeting for 30 minutes at 11:30am and changed the meeting venue after the two localists stormed the chamber. The two had been banned from attending until they are formally sworn in.

> Localist Lau Siu-lai, whose original oath was invalidated because of the extremely slow manner in which she recited it, was successfully sworn in.

3.35pm – Andrew Leung condemns violence

Legco president Andrew Leung Kwan-yuen condemns the violent acts of the Youngspiration duo and their supporters. He says six security guards were injured in the row.

 Legco president Andrew Leung Kwan-yuen condemned the chaos that led to injuries. Photo: Sam Tsang

Leung says news that Beijing planned to interpret the Basic Law in order to settle the oath saga was premature. He says the Hong Kong court’s hearing of the oath-taking case is still on for tomorrow as far as he knows.

2pm – No contrition from Youngspiration duo

Baggio Leung and Yau Wai-ching appear unapologetic over the injuries, saying some assistants to other lawmakers were injured too. He says the Legco president and Secretariat should bear full responsibility for the chaos and injuries.

“I’ll send them my regards,” he says when asked whether he will apologise to the injured officers.

I call on them not to take orders from bosses that are unreasonable and unlawful

“I call on them not to take orders from bosses that are unreasonable and unlawful,” he adds. “They have a choice.”

The two say they only meant to enter the meeting room and perform their duties as lawmakers and did not mean to hurt anyone.

Leung explains why he and Yau changed their minds about staying away from the meeting and decided instead to storm the conference room – Andrew Leung’s rejection of James To’s motion to debate Beijing’s possible interpretation of the Basic Law.

“If the legislature cannot even debate this major issue, what is it doing here?” he asks.

1.50pm – ‘Totally unacceptable’

Pro-establishment lawmakers say after the meeting that the Legco Commission should hold an emergency meeting to discuss how to improve security arrangements to prevent security guards from being injured again.

DAB lawmaker Starry Lee Wai-king says she was informed about the decision to call the police to intervene and that she agreed with it.

“Our security guards are not professional enough and they need help,” she says. “[The violence] is totally unacceptable and all those involved should be condemned.”

 A Legco security employee being carried out today. Photo: Sam Tsang

1.31pm – Carried out on stretchers

Four Legislative Council security employees are receiving medical help, with three being brought out on stretchers. One is given an oxygen mask.

In total, three security guards – one woman and two men – are being sent to hospital following the chaos.

1.25pm – ‘Is this Legco or a police station?’

“Long Hair” Leung Kwok-hung tries to block police officers from entering the conference room.

“Is this Legco or a police station?” he asks.

 “Long Hair” Leung Kwok-hung trying to block police at Legco. Photo: Sam Tsang

Moments earlier, the radical pro-democracy lawmaker blasts Legco president Andrew Leung Kwan-yuen for notifying the police, calling the decision “a very serious and unreasonable event”.

 Medical attention inside Legco’s conference room where today’s meeting was held and adjourned. Photo: Joyce Ng

1.20pm – Police arrive

At least seven police officers arrive at Legco following the chaos outside conference room 1. By law, police officers are not authorised to enter the legislature unless they are invited by the Legco president and the Secretary-General.

The officers include members of Police Tactical Unit. They have yet to explain their purpose.

 Police arriving at Legco. Photo: Jeffie Lam

1.16pm – Meeting adjourned

Legco president announces today’s meeting is adjourned. Next meeting is to be held next week.

1.11pm – A security guard faints

Legco president Andrew Leung Kwan-yuen tells media outside the conference room that a security guard has fainted and that the body’s Secretariat has filed a police report.

1.07pm – Another suspension

After Undersecretary for Constitutional and Mainland Affairs Ronald Chan Ngok-pang reads out his answer to the first oral question and before lawmakers pose their follow-up questions, the Legco president suspends the meeting citing “the chaos outside”.

Outside the room, scuffles break out as Youngspiration tries to push through the security guards and storm the meeting. They swear at the guards, and more security guards are deployed.

 The Legislative Council building in Tamar today before the chaos got going. Photo: Xiaomei Chen

1pm – ‘You’re breaking the law!’

Some people, who appeared to be backers of the localist group Youngspiration, are shouting at security guards outside the conference room where the Legislative Council is meeting. The guards had blocked the two localist lawmakers from entering the meeting room moments before.

“Don’t block us, aunties!” they chant at the female guards. “According to the powers and privileges ordinance, no one should block lawmakers from entering the meeting room. You are now breaking the law.”

12.59pm – Moving right along

After Legco president Andrew Leung Kwan-yuen’s ruling and the Youngspiration pair are prevented from entering, Democrat Ted Hui Chi-fung is allowed to ask the first oral question. Hui asks about irregularities in the Legislative Council elections.

12:55pm – Guess who’s back again?

Baggio Leung and Yau Wai-ching, who after today’s suspended proceedings in the main chamber said they would not storm the council meeting again, attempt to enter the new meeting venue again, triggering more chaos.

 Yau Wai-ching (head between arms) trying to enter Legco’s conference room. Photo: Sam Tsang

12.54pm – No debate allowed

Several pan-democrats Wu Chi-wai and Claudia Mo urge the president to allow the motion, also saying the chief executive had hinted at the possibility of an interpretation by Beijing.

To this Andrew Leung says: “I have decided.”

“My ruling is not open to debate,” the Legco president adds. “If you want to clarify anything, do it on another occasion.”

12.52pm – And the first order of business…

Meeting resumes. Legco president Andrew Leung Kwan-yuen disallows Democratic Party lawmaker James To Kun-sun’s motion for a debate on interpreting Basic Law interpretation.

“Obviously, Councillor To’s request is based on media reports, not real happenings,” Leung says. “So I can’t approve it.”

To disagrees with Leung’s ruling. The lawmaker cites Chief Executive Leung Chun-ying as saying that he would not “rule out the possibility” of interpreting the Basic Law.

 Legco president Andrew Leung Kwan-yuen speaking to media after adjourning the meeting today. Photo: Sam Tsang

12.42pm – Meeting resuming soon

Legco will reconvene in 10 minutes in conference room 1. Most lawmakers are getting ready in their seats.

12.09pm – Lo Wai-kwok calls for respect of rules

Pro-establishment lawmaker Lo Wai-kwok, representing the engineering sector, says he hopes lawmakers could respect council rules.

“If some people storm in the chamber, utter a lot of words and then say they have finished taking their oath, it is absolutely ridiculous,” he says.

 A grim-faced pair: Yau Wai-ching and Baggio Leung outside Legco. Photo: Sam Tsang

12.04pm – ‘Beijing might encourage Hong Kong independence’

Baggio Leung says if Beijing does interpret the Basic Law, it would help the growth of Hong Kong independence. He says the “one country, two systems” principle and Hong Kong independence are two options Hongkongers have and that an interpretation would undermine the principle, and thus leave Hongkongers no option but to choose independence.

11.56am – Motion to debate Beijing’s possible interpretation

As the Legco meeting resumes in conference room 1, veteran Democratic Party lawmaker James To Kun-sun tables a motion calling for a debate on the National People’s Congress’ expected interpretation of the Basic Law regarding Youngspiration duo’s oath-taking.

Legco president Andrew Leung Kwun-yuen calls for another break so that he can consider whether to allow the debate.

11.50am – Baggio Leung holds forth

During the 30-minute break, Baggio Leung announces that he and Yau will not try again for now to enter conference room 1.

Our seats now only symbolise whether truth exists in Hong Kong

“I don’t want any journalists to get injured or encounter any danger,” he says.

Asked if he and Yau would stay away from the council meeting today, Leung says: “Please give us some time to think about what we’ll do next.”

The Youngspiration member says an interpretation by Beijing would “not only destroy democracy, but also our core values, separation of powers, everything”.

Leung dismissed concerns that he was jeopardising his seat in the city’s legislature.

“Our seats now only symbolise whether truth exists in Hong Kong,” he says. “I hope to prove to the court that we are right, otherwise we’ll question whether Hong Kong is still the place we knew.”

“I dare say it is not.”

 Baggio Leung with Yau Wai-ching speaking outside the chamber. Photo: Sam Tsang

11.50am – Pro-establishment leader criticises duo

Lawmaker and executive councillor Starry Lee Wai-king, chairwoman of the Democratic Alliance for the Betterment and Progress of Hong Kong, says the Youngspiration duo’s entering the chamber was disrespectful of the Legco president’s decision and prevented the council from discussing legislative affairs.

 DAB chairwoman Starry Lee Wai-king speaking outside Legco after the meeting was suspended. Photo: David Wong

“I hope [the pair] will not enter by force again, and I hope the non-establishment lawmakers do not escort them into the council again,” she says.

She declines to comment on Beijing’s possible interpretation of the Basic Law.

Watch: Live from Legco, after localist pair were blocked in attempt to retake oaths

11.31am – If at first you don’t succeed…

Before the meeting resumes in Legco’s conference room 1 on the second floor, the Youngspiration duo take a lift from the first floor to try to enter the room by surprise.

But they were outpaced by security guards who blocked them at the room entrances. They are stuck, surrounded by photographers and cameramen.

 Baggio Leung would not leave the chamber, but did after Legco president Andrew Leung announced a new venue for the meeting. Photo: K. Y. Cheng

11.26am – Baggio not budging

Baggio Leung refuses to leave the chamber. Legco president Andrew Leung Kwan-yuen announces the council meeting will continue in a conference room in 30 minutes.

 Baggio Leung surrounded and Yau Wai-ching being escorted away. Photo: Felix Wong

11.25am – Yau Wai-ching speaks

Yau Wai-ching said after being escorted out that she entered the chamber to carry out her responsibility as a lawmaker.

Whoever asks for interpretation of the law is the one selling Hongkongers out

“I have read the whole oath and I hope I can keep staying in the chamber and attend the meeting,” she says.

Yau said Legco president Andrew Leung had contravened the rules in blocking her from taking her oath.

Yau also expressed concerns this morning over Beijing’s possible hand in the matter.

“My concern is about the destruction of the ‘one country two systems’ policy,” she says.

“Whoever asks for interpretation of the law is the one selling Hongkongers out.”

 Yau Wai-ching being taken away this morning. Photo: K. Y. Cheng

11.24am – Support circle

Baggio Leung is helped by pan-democratic and localist allies, including Ted Hui Chi-fung, “Long Hair” Leung Kwok-hung, Raymond Chan Chi-chuen and Eddie Chu Hoi-dick, who surround the Youngspiration member as security guards try to take him away.

Watch: Legco live as it’s happening

11.16am – ‘This cannot be done!’

Lawmaker Eddie Chu Hoi-dick joins the Legco fray, shouting: “This cannot be done! He [Baggio Leung] was voted in and chosen by thousands of Hongkongers!”

11.12am – Physical obstruction

Lawmakers and security guards are in a deadlock as a group tries to physically carry Sixtus Baggio Leung Chung-hang out of the chamber.

Pan-democratic lawmaker “Long Hair” Leung Kwok-hung lies on the floor to block the procession out.

 Pro-establishment lawmakers turn their back on localist Lau Siu-lai. Photo: K. Y. Cheng

11.07am – The duo enter and rush the floor

As the UGL motion was passed, Baggio Leung and Yau Wai-ching enter the chamber accompanied by several pan-democratic lawmakers trailing them, including Eddie Chu Hoi-dick and Nathan Law Kwun-chung.

 The duo enter the chamber. Photo: Felix Wong

Once inside, the two rush the table in front of Legco president Andrew Leung. They take out a small piece of paper, pick up a small microphone and start to read the Legislative Council Oath.

 But the Legco president tells them to leave, and when they refuse, he asks the security guards to take them away.

 Yau Wai-ching and Sixtus Baggio Leung Chung-hang outside Legco this morning. Photo: Sam Tsang

This request prompts several accompanying lawmakers, including Nathan Law Kwun-chung and Eddie Chu Hoi-dick, to try to stop the security guards from taking them away.

Andrew Leung orders the meeting to be suspended. Yau is taken away. Baggio Leung remains.

11.05am – Meanwhile, a motion passes

Accountancy sector lawmaker Kenneth Leung’s motion to launch a special inquiry into Chief Executive Leung Chun-Ying’s UGL controversy is passed after 28 lawmakers including the lawmakers stand in support of his motion.

The probe will look at the chief executive’s receipt in 2014 of HK$50 million from Australian firm UGL.

11.01am – Lau Siu-lai finally sworn in

Legco meeting starts, and Lau has taken her oath.

10.49am – Regina Ip talks and balks

New People’s Party chairwoman and lawmaker Regina Ip Lau Suk-yee struggles to give an answer when asked whether she supports or opposes an interpretation by Beijing.

“The good side of it is it can speed up the process,” she says. “It may be two years for the local judicial process to resolve the case.

She says the central government is “furious” about the Youngspiration duo.

“The down side is an interpretation will attack Hong Kong’s rule of law and the authority of the Hong Kong government.”

So does she support the move or not? “I don’t know,” she says.

10.45am – Protesters outside Legco

Around 20 demonstrators from the League of Social Democrats protested outside Legco, chanting: “legislators’ right to be elected should not be deprived by the Chinese communist party”. They urged Legco chairman Andrew Leung Kwan-yuen to withdraw his decision to bar the Youngspiration duo from taking their oath again, saying the decision showed he had given up his non-partisan position in depriving lawmakers of their right to discuss legislative affairs.

 The protest area outside Legco in Tamar is relatively empty this morning. Photo: Xiaomei Chen

Lawmaker “Long Hair” Leung Kwok-hung is among the protesters and says the Legco president has capitulated to Beijing and suppressed democratically elected lawmakers.

“If [Leung] insists on serving the strong power, ignoring people’s opinions and trampling the Legislative Council, the non-establishment lawmakers will have no other choice but to escalate our fight till the end,” he said.

Watch: Jeffie Lam reports live outside Legco as lawmakers return for fourth meeting

10.44am – Former missing bookseller chimes in

Former missing bookseller Lam Wing-Kee announces he will join a demonstration 7pm tonight from the chief executive’s office to the central government’s liaison office in the city.

In a statement sent by the Democratic Party, Lam said Beijing’s interpretation of the Basic Law to settle the oath case would “destroy the judicial independence of Hong Kong”.

10.40am – One localist’s plan

Lau Siu-Lai, who is arranged to retake the oath today, says she will act “according to her conscience” before entering the chamber.

The localist was asked to redo he oath after pausing too long between every word during her first oath taking.

 Lawmaker Lau Siu-lai had her first oath invalidated. Photo: David Wong

10.35am – Democratic Party blasts possible Beijing review

Democratic Party lawmaker James To Kun-sun said his party strongly opposed Beijing’s possible interpretation of the Basic Law, arguing Hong Kong had jurisdiction to handle the dispute.

He said the possible move by the NPCSC might hurt global confidence in the “one country, two systems” principle.

 Lawmaker James To Kun-sun (centre), flanked by fellow Democratic Party members, calling on Beijing to refrain from interpreting the Basic Law over the oath controversy. Photo: David Wong

The Democrats have filed an urgent oral question and an adjournment motion pending approval by Legco president Andrew Leung Kwan-yuen. They also asked for an urgent meeting with Secretary for Justice Rimsky Yuen Kwok-keung to discuss the oath matter.

 Pro-establishment protesters outside the legislative complex in Tamar this morning. Photo: Xiaomei Chen

10.30am – ‘Leave it to the court’

Civic Party lawmaker Dennis Kwok, representing the legal sector, said it would be a significant blow to Hong Kong’s rule of law should the National People’s CongressStanding Committee decide to interpret the Basic Law at this stage as a judicial review looms.

“I want to tell NPCSC and the Basic Law Committee directly that I hope they would respect the ongoing judicial process in Hong Kong and that the court would definitely handle the case in a fair and just manner,” he said. “I don’t see any need for the [NPCSC] to interpret the law at this stage.”

 Civic Party lawmaker Dennis Kwok Wing-hang today. Photo: David Wong

He also alleged conflicts of interests involving Johnny Mok Shu-luen SC, a Basic Law Committee member who is representing the government in the Legco legal challenge.

Mok should either promise not to engage in the committee’s discussion on interpreting the law or not represent the government in the case, he said.

The newly-elected Legislative Council, which had its weekly council meeting adjourned for two consecutive weeks since it started on October 12, will convene again at 11am this morning.

The meeting comes just a day ahead of a court hearing for a judicial review filed by the government challenging the Legco president’s decision to allow two localist lawmakers to retake their oaths after their first failed attempt caused a huge political stir.

It also comes after the national legislative body confirmed plans to intervene in the row by issuing an interpretation of Hong Kong’s mini-constitution on Thursday – as suggested by Beijing and local sources.

The oaths by Sixtus Baggio Leung Chung-hang and Yau Wai-ching, both of the localist group Youngspiration, were invalidated by the president after they pledged allegiance to “Hong Kong nation” and called China “Shina” –a derogatory term used by Japan during the second world war.

Watch: Legco oath-taking crisis last Wednesday

Legco president Andrew Leung Kwan-yuen originally decided to offer the pair a second chance, but he later made a dramatic U-turn and banned the duo from entering the chamber after his pro-Beijing allies protested.

The meeting was eventually cut short last week after the localist pair defied Leung’s decision to storm the chamber with the help of eight pan-democrats.

Lawmakers across the political spectrum are today expected to clearly express their views on Beijing’s reported plan to interpret the Basic Law – a plan already strongly condemned by pan-democrats and legal scholars as a huge blow to the city’s rule of law and a deprival of Hong Kong court’s jurisdiction.

Meanwhile, it remains uncertain whether another newly-elected localist, Lau Siu-lai of the Democracy Groundwork, will be able to retake her oath smoothly in today’s session. Leung granted her a second chance after she spent eight minutes delivering her first oath by pausing six seconds between even Chinese word.

 Yau Wai-ching and Sixtus Baggio Leung Chung-hang (second right) of Youngspiration surrounded by pro-democratic lawmakers Nathan Law Kwun-chung (white shirt) and Shiu Ka-chun (far right) last Wednesday. Photo: Sam Tsang

It was understood that the democratic caucus planned to facilitate Lau’s oath-taking and that the Youngspiration pair would not storm the meeting until Lau had been sworn in.

The Legco Secretariat introduced new measures yesterday dividing the area outside the chamber between the press zone and a passageway for councillors to use. It reminded reporters they were prohibited from entering the chamber or blocking lawmakers from entering.

Hong Kong: Declaration document saying Hong Kong is an “inalienable” part of China is unnecessary, illegal and wrong

August 2, 2016

Sherif Elgebeily says the Electoral Affairs Commission runs the risk of being seen as suppressing dissent with its decision to bar a localist candidate from running


By Sherif Elgebeily
South China Morning Post

Last weekend, the Electoral Affairs Commission decided to invalidate the candidacy of Hong Kong National Party member Chan Ho-tin for the upcoming Legislative Council election. The exact reasons behind this are unclear, but other candidates who also refused to sign a newly imposed declaration form have yet to receive notice on the validity of their candidacies, fuelling concern.

The pledge to uphold the Basic Law is a fundamental part of the eligibility for candidacy, as outlined on the nomination form; it is for this reason that the ineligibility of Democratic Progressive Party of Hong Kong’s Yeung Ke-cheong – who refused to sign the nomination form itself – is legally valid.

Should Chan have been disqualified?

On one level, the additional declaration form is obsolete, as it simply duplicates existing obligations. Worse, it also appears to contravene both the rule of law in Hong Kong and the Basic Law in its effect.

First, there is no legal basis for the demand of an additional form, and the invalidation of candidacy on these grounds is beyond the powers of the commission. Any reference to such a form is absent in the law governing the election procedure; moreover, an exhaustive list of requirements for nomination is provided for under Section 40 of the Legislative Council Ordinance. Any legally enforceable declaration or criteria for the nomination of individuals would require amendments of the existing law, a path which has not been followed.

The commission has no absolute power to create new law

The commission has no absolute power to create new law. The form is also undermined by the commission’s own guidelines, which make mention of five explicit criteria for eligibility of nomination. They do not include the submission of a declaration form. These paradoxes raise alarm over the rule of law in Hong Kong, notably the separation of powers between government bodies and the supremacy of the law in an administrative context.

Second, in disqualifying candidates who are seen to advocate independence, on the grounds of failure to complete the declaration form, the commission has barred popularly supported candidates from representing their supporters. This infringes not only the rights of Hong Kong citizens to be elected, but also that of all citizens to elect their own representatives, and amounts to a violation of Article 26 of the Basic Law. To do so on the grounds of political belief also falls foul of articles 27 and 32 on free speech and the freedom of conscience. It is at best contradictory for the commission to disqualify candidates on the grounds of undermining the Basic Law while violating that document in doing so.

 Edward Leung speaks to the press last month. Leung received votes from some 66,000 Hong Kong people in the New Territories East by-election this year. Photo: AFP

Chan’s disqualification reflects a worrying trend of the regulation of Legco members. By eliminating voices of dissent at the ballot-paper stage, the authorities appear to be telling selected political groups that their opinions are either not welcome or not legitimate.

This rigid stance defies reality in today’s Hong Kong. Not all localist groups can be labelled anomalies. This year, for example, Hong Kong Indigenous’ Edward Leung Tin-kei won nearly 16 per cent of the vote in the New Territories East – over 66,000 voters in real terms. These citizens deserve to be heard.

Perhaps more importantly, voting patterns show that first-time and younger voters have been decidedly more involved in the election process, not only through casting ballots but also standing themselves. A new generation – those born after the handover – have reached voting age, and they care more about the status of Hong Kong and the full realisation of Basic Law freedoms than they do about the platforms that have traditionally formed political manifestos and campaigns. The government has a duty to engage with this demographic.

In essence, the decision to invalidate Legco candidacies over political stances is tantamount to the invalidation of the legitimacy of the voice of the youth today. From both a legal and political standpoint, the declaration form was unnecessary, illegal and threatens the future of the rule of law in Hong Kong.

Sherif Elgebeily (@selgebeily) is Bingham Centre International Rule of Law Visiting Fellow 2016, and a lecturer with the University of Hong Kong Faculty of Law

The Bingham Centre is a part of the British Institute of International and Comparative Law