Posts Tagged ‘Leung’

Hong Kong: Pan-democrats could be the “kingmakers” in a tight political race

February 17, 2017

By Joyce Lim
Hong Kong Correspondent
The Straits Times

Holding over 25% of the votes, they aim to stop Beijing’s preferred candidate Carrie Lam

On March 26, Hong Kong’s next leader will be voted in by an Election Committee of 1,194 members. That only so few have a say reflects the failure of the 2014 Occupy Protests, where protesters demanded “one man, one vote” in choosing the chief executive.

But the experience has galvanised the pan-democratic, or pro-democracy camp, to be more pragmatic. Previously, they would cast blank votes to show that they do not support pro-establishment contenders. This time, they hold 326 votes – which is more than a quarter of the votes in the Election Committee – and are determined to make them count.

With the election featuring three pro-establishment figures – Mrs Carrie Lam, Mr John Tsang and Ms Regina Ip – for the first time, the pan-democrats could be the “kingmakers” in a tight race.

Former security chief Ip, 66, who won the most votes for a female lawmaker in last September’s Legislative Council Election, was the first among the three to announce her candidacy, followed by Mr Tsang, 65, a former finance chief, and Mrs Lam, 59, a former chief secretary. Others include retired judge Woo Kwok Hing, 70, and radical pan-democrat Leung Kwok Hung, 60.

To become the next chief executive, at least 601 votes are needed. To qualify, each contender needs at least 150 nominations from the Election Committee made up of mostly pro-Beijing property tycoons, lawmakers as well as representatives of professional bodies and trade associations.

That’s the challenge for all but Mrs Lam, who has been endorsed by Beijing. She has reportedly secured 300 to 400 nominations while Mr Tsang has 24 nominations from pan-democrats.

Mr Tsang, who is leading in popularity polls, is seen as the strongest contender to Mrs Lam.

Some see Beijing’s move to name its preferred candidate as its bid to control the election, said Professor Lau Siu Kai, vice-chairman of the Beijing-backed Chinese Association of Hong Kong and Macau Studies. And it is the pan-democrats’ aim to stop Beijing’s choice candidate from becoming the next chief executive.

“If John Tsang and Woo Kwok Hing are able to join the race, there may be unexpected results,” said Prof Lau, referring to the duo deemed acceptable by the pan-democrats. That is because the next leader would be picked by a secret ballot system, which could see Mrs Lam’s supporters switching sides.

Still, if Beijing had not declared its preferred candidate, it is unlikely that any contender would be able to win enough votes.

Last week, radical lawmaker Leung, better known as “Long Hair”, declared his intention to run and urged pan-democrats not to vote for the other four contenders who “do not represent (the) pro-democracy camp”.

But lawmaker Dennis Kwok, who is coordinating votes from the pan-democrats, told reporters the bloc is considering voting for Mr Tsang, Mr Woo and a third nominee picked from a mock online poll.

With nomination closing on March 1, pan-democrats should decide by next week, he said.

Critics have said Mr Leung’s intention to run has further split the pan-democratic camp already faced with the dilemma of whether to support Mr Tsang. Some worry about the possible backlash from endorsing someone who wants to enact the unpopular national security law.

But with Mr Tsang having a huge lead in popularity polls, even if he turns out to be like incumbent Leung Chun Ying, whose policies are unpopular with Hong Kongers, the pan-democrats could say that the candidate they have endorsed was the people’s choice.

http://www.straitstimes.com/asia/east-asia/pan-democratspragmatic-approach-to-upcoming-polls

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Hong Kong separatist lawmakers attend High Court hearing to appeal a verdict that disqualified them taking their seats in the legislature — But Beijing’s intervention now seems to show Hong Kong where law begins … and ends

November 24, 2016
November 24 at 3:40 AM
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HONG KONG — Two Hong Kong separatist lawmakers attended a hearing at the city’s High Court on Thursday to appeal a verdict that disqualified them from taking their seats after they altered their oaths by adding anti-China insults.
.A Nov. 15 ruling said that Sixtus Leung Chung-hang and Yau Wai-ching from the Youngspiration Party could not take office because they violated the semi-autonomous Chinese city’s mini-constitution and rules on the taking of oaths by elected officials.

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Beijing had pre-empted the court by issuing its own controversial ruling aimed at blocking the pair from getting a second chance at taking their oaths.

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Beijing’s intervention raised concerns over the integrity of the “one country, two systems” blueprint under which the former British colony had retained its own legal, social and economic institutions upon being handed over to Chinese rule in 1997,

In taking their oaths last month, Leung, 30, and Yau, 25, had also displayed a flag that said “Hong Kong is Not China” and used an archaic derogatory Japanese term for China, actions seen as deeply insulting and unpatriotic by the central government in Beijing.

It was not clear when the High Court will rule on the appeal.

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Hong Kong — Sixtus (Baggio) Leung and Yau Wai-ching talk to CNN

Hong Kong’s Pro-Independence Lawmakers Are Outcasts, China Says — But They Have Not Given Up

Updated 12:00 AM ET, Tue November 22, 2016

Hong Kong (CNN) Yau Wai-ching and Sixtus “Baggio” Leung would be forgiven for feeling a little shell shocked.

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They’ve gone from being stars of Hong Kong’s nascent independence movement, to public enemy number one, criticized in newspapers and on television, and harassed online.
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In September, the pair were elected to Hong Kong’s parliament, LegCo, where they joined a raft of other young lawmakers favoring greater autonomy for the city or even independence from China.
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“When we were elected, our battle between the people and government was just starting,” Yau, a 25-year-old former community worker, told CNN.
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That battle has escalated far quicker than anyone could imagine. On November 2, Yau and Leung were dragged from LegCo by security guards as they found themselves at the center of a legal battle that threatens to undermine the city’s already shaky political system.
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Hong Kong and China: One country, two systems

Oathgate

The saga began as lawmakers were taking their oaths of office last month. While pro-democracy politicians have used the ceremony as a venue for protest in the past, Yau and Leung took it a step further.
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They swore and insulted China and displayed flags with the words “Hong Kong is not China,” leading to their oaths being rejected, along with several other lawmakers who flubbed their vows.
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The pair were due to retake their oaths properly the following week when everything got a lot more complicated. Hong Kong government officials sued to prevent them being sworn-in again, arguing they had forgone their opportunity.
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Before the court could rule, Beijing too waded in, using a rarely-used power to re-interpret Hong Kong’s constitution.
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Yau and Leung could not retake their oaths, and would not become lawmakers, Beijing said. This was later backed up by a Hong Kong court, though the pair are appealing.
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“We were elected by over 50,000 voters,” Leung said, adding that he was fighting to “protect our system and the separation of powers and the rule of law.”
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Yau defended the pair’s protest as a tradition, pointing to occasions in the past where other lawmakers used the oath-taking session “for a performance or chance to show their ideologies.”
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Displaying the flags was just a statement of fact, Leung added, “Hong Kong is not China.”
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They would not comment on the content of their oaths, due to the ongoing appeal.
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What’s at stake?

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Beijing’s ruling came as a shock to much of Hong Kong.
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Last week, wearing black and led by a marshal holding a black umbrella, more than 2,000 lawyers marched on the city’s top court, in a silent demonstration against what they saw was a blow to the city’s judicial autonomy.
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“This is treachery on behalf of the (Chinese government) to the Hong Kong people. How can they ever trust them again?” said Alan Leong, a former barrister and co-founder of the pro-democracy Civic Party, adding that Beijing’s ruling was “completely unnecessary.”
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The fear is that Beijing’s interpretation, which requires officials to pledge allegiance to Hong Kong as an inalienable part of China, will undermine judicial independence and the “one country, two systems” principle under which the city is governed.
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“By preventing the two pro-independence politicians from taking office, the Chinese government has opened the door to disqualify anyone from Hong Kong’s government if they are determined to not be loyal to Beijing,” pro-democrat lawmaker Claudia Mo wrote in an op-ed after the ruling.
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Some fear that Beijing is also indicating a willingness to change the constitution at will. Before the most recent interpretation, the power had only been used four times in the past 19 years.
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Yau Wai-ching holds a court ruling as she leaves the High Court in Hong Kong on November 15, 2016.

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Why did Beijing act?

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The oath-taking saga comes amid increasing support in Hong Kong for independence from China, which has caused concern and outrage in Beijing.
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In the run-up to the LegCo elections in September, several pro-independence candidates were banned from taking part, including Edward Leung (no relation to Baggio), then the city’s most famous separatist politician.
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Yau and Leung’s actions “hit the bottom line of the ‘one country, two systems’ principle and posed a grave threat to national sovereignty and security,” China’s top lawmaking body said in a statement this month.
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Chinese foreign ministry spokesman Geng Shuang said last week that “pro-independence forces in Hong Kong want to split the nation.”
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Leung accused his and Yau’s critics of “blaming the victim,” and argued that it is Beijing which has fostered support for independence through its heavy-handed actions.
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“They’re the ones who caused a generation of Hong Kongers to think that ‘one country, two systems,’ isn’t working,” he said.
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Yau added that people should recognize the arrangement is “a failed experiment, no country would choose to rule a city in this way.”
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If Hong Kong does not become independent, she said, then it is just the same as any other Chinese city.
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Hong Kong's banned candidates

Divided city

Despite widespread outrage over Beijing’s intervention, including mass protests, Yau and Leung have also come in for a whirlwind of criticism, even from anti-Beijing quarters.
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Chinese state media said that it was “the will and demand of the entire population of China” that the pair be ejected, and pro-Beijing groups staged a protestagainst them holding signs such as “Yau and Leung get out of China.”
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While other pro-democrat lawmakers have largely stood in solidarity with the pair, outside LegCo reaction has been decidedly mixed, with some supporters even expressing frustration over Yau and Leung’s actions.
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“The most prevalent sentiment is that Yau and Leung have overplayed their hands — and rather unnecessarily so,” said Jason Ng, a lawyer and author of “Umbrellas in Bloom: Hong Kong’s occupy movement uncovered.”
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“By doing what they did, they have not only damaged their own politics careers, but they have also jeopardized those of other anti-establishment lawmakers.”
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Yau and Leung have come in for intense criticism since their stunt.

Intense criticism

While Yau and Leung said they are determined to keep fighting to the end (the case has not yet reached Hong Kong’s Court of Final Appeal), it is clear events are taking their toll.
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Leung said he was moved to tears reading an article quoting his election volunteers’ despair and dejection after months of work to get him his seat was wasted.
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“Most Hong Kongers are sympathetic to us,” Yau said. At times however, criticism has turned personal.
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The youngest woman ever elected to LegCo, Yau has frequently been the target of offensive and sexist comments, and at a protest last month pro-Beijing groups displayed a naked sex doll with her face on it.
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While Yau denied that her gender has been a factor, she said the criticism has made her family worry for her safety.
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Paraphrasing a song lyric by Canto-rock singer Candy Lo, Leung said he could handle being “abandoned by the world” so long as he had something to love.
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“Hong Kong is like a sinking ship,” he said, but one he hoped to save.

http://www.cnn.com/2016/11/21/asia/hong-kong-banned-lawmakers/

China’s President Xi Jinping Stands Behind Hong Kong Leader Leung Chun-ying

November 21, 2016

LIMA, Peru — Hong Kong’s leader says Chinese President Xi Jinping has affirmed his handling of a political dispute in the Chinese-ruled territory in which two independent legislators were barred from taking their seats.

Chief Executive Leung Chun-ying said Xi had “fully affirmed our work” in a meeting on the sidelines of the Asia Pacific Economic Cooperation forum in Lima, Peru.

Leung said Xi referred to the decision to refuse to seat two elected members of Hong Kong’s Legislative Council for using anti-China insults and foul language while taking their oaths. Xi has not publicly commented on the controversy.

Beijing handed down its own interpretation of the semi-autonomous region’s mini-constitution to disqualify the two, circumventing Hong Kong’s courts and raising fears over the city’s wide autonomy and independent judiciary.

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Xi Jinping gives nod to work of Hong Kong government and urges CY to be ‘resolute’ in safeguarding national unity

Chinese president meets city’s top official on sidelines of Apec forum in Peru

Monday, November 21, 2016, 1:18 p.m.
 

China’s Intrusion into Hong Kong’s Politics and Law — More Than A Little Tinge of Totalitarianism Doesn’t Look Like Strength

November 8, 2016

Editorial
The Globe and Mail

Canada

The mainland Chinese government in Beijing has intervened more openly than ever before in the governance of Hong Kong. The Chinese National People’s Congress – Beijing’s parliament – pronounced on Monday that all members of Hong Kong’s legislative council must “swear allegiance to the Hong Kong Special Administration Region of the People’s Republic of China,” and that none of them could even advocate independence for Hong Kong – something that could hardly be imagined in, say, Canada.

This was a remarkably heavy-handed response to two young politicians who recently won election to the island’s legislative council. When taking an oath before occupying their seats, Sixtus Baggio Leung and Yao Wai-ching made satirical references to China and swore allegiance to “the Hong Kong nation.”

So far, the two are being paid their salaries and working in their offices, but a pro-Beijing group in Hong Kong says they have “darkness and dirt in their hearts.” The whole matter is before the Hong Kong courts.

 
 HK Yau Wai-ching and Sixtus Baggio Leung Chung-hang at the event in Wan Chai, Hong Kong on Sunday, November 6, 2016. K.Y. Cheng Photo for SCMP

It’s not a good sign for Hong Kong’s “one country, two systems” principle. In 1997, after many years, Britain returned Hong Kong to China. The agreement said the island would have a distinct system, with the rule of law and liberal commerce. But the electoral system is only partly democratic, because of so-called “functional” constituencies. Now, there is further cause to worry about Hong Kong’s relative political freedom. Two other so-called “localist” legislators are being looked at askance by the authorities, one for allegedly raising eyebrows at the swearing-in, another for pausing between words. Such pettiness has more than a tinge of totalitarianism.

http://www.theglobeandmail.com/opinion/hong-kongs-relative-political-freedom-under-threat/article32717969/

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Hong Kong lawyers march in silence to condemn China’s legal intervention — “We will not accept interpretation becoming the norm.”

November 8, 2016

Tue Nov 8, 2016 | 6:05am EST

Reuters

Hundreds of lawyers wearing black stage a silent protest to the Court of Final Appeal against China’s parliament that passed an interpretation of Basic Law, in Hong Kong, China November 8, 2016. REUTERS/Tyrone Siu
By Venus Wu | HONG KONG

Hundreds of Hong Kong lawyers dressed in black marched through the heart of the city in silence on Tuesday to condemn a move by China that effectively bars two elected pro-independence lawmakers from taking their seats in the legislature.

The former British colony returned to China in 1997 under a “one country, two systems” agreement that ensured its freedoms, including a separate legal system. But Beijing has ultimate control and some Hong Kong people are concerned it is increasingly interfering to head off dissent.

Local and foreign lawyers walked from the High Court to the Court of Final Appeal, underscoring growing concern among Hong Kong’s legal elite with how Beijing has handled affairs in the “special administrative region” of Communist Party-ruled China.

The demonstration follows a decision by China’s parliament to interpret Hong Kong’s mini-constitution, or Basic Law, to effectively bar the independence lawmakers from taking their oaths of office.

“We want to express that interpretation is not the norm of the Hong Kong legal system,” said legislator and barrister Dennis Kwok, who organized the rally. “We will not accept interpretation becoming the norm.”

As the lawyers marched, about a dozen pro-Beijing protesters taunted them, some shouting obscenities through loudspeakers. One Beijing loyalist held up a placard that read: “Rioters mess up Hong Kong.”

Beijing’s ruling on Monday that oaths for Hong Kong lawmakers must be taken accurately, sincerely and solemnly for them to be valid, just as a local judicial review of the case was under way, rattled many in the legal profession, political circles and beyond.

The High Court is set to decide if pro-independence lawmakers Baggio Leung, 30, and Yau Wai-Ching, 25, may be disqualified after they displayed a “Hong Kong is not China” banner during a swearing-in ceremony in October which resulted in their oaths being invalidated.

Hong Kong has thrived as a financial and legal center thanks in part to its independent rule of law, which many now perceive to be under threat.

The Hong Kong Bar Association, which represents more than 1,000 barristers, expressed regret over the interpretation, saying it would “do more harm than good” and gave the impression that Beijing was effectively legislating for Hong Kong.

The march was only the fourth such protest by the city’s lawyers since 1997.

The last march, in June 2014, was in response to a white paper by China’s cabinet that declared “loving the country” was a basic political requirement for all Hong Kong administrators, including judges and judicial personnel.

Hong Kong was also rocked by months of street protests calling for democracy in 2014 and more recently by calls for independence.

(Reporting by Venus Wu, Writing by Anne Marie Roantree; Editing by Nick Macfie)

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For Hong Kong’s Independence Movement — Game Over — Whatever Beijing wants, Beijing gets

November 8, 2016

Pair lost battle with their more powerful adversary, which sees independence movement as a threat to national security

By Michael Chugani
South China Morning Post

November 8, 2016, 5:04 p.m.
 
 HK Yau Wai-ching and Sixtus Baggio Leung Chung-hang at the event in Wan Chai, Hong Kong on Sunday, November 6, 2016. K.Y. Cheng Photo for SCMP

Who’s sorry now? They had a chance to say sorry but chose to be David staring down Goliath. Gutsy, to be sure, but too gutsy to grasp that the Goliath they faced was not the biblical one. Stones from their slings bounced off Goliath who decapitated them with one swing.

There’s a simple moral to this story: whatever Beijing wants, Beijing gets. Did it want to spin the Basic Law’s oath-taking clause in a way that has sparked a political crisis? No. We brought it on ourselves.

Youngspiration’s Sixtus Baggio Leung Chung-hang and Yau Wai-ching may think that being elected gives them the right to do as they please. Opposition legislators may argue that being elected gives the pair the right to take up their seats. No. The process of being duly elected includes a solemn oath-taking, not making a mockery of it. High Court judge Michael Hartmann made that clear in 2004.

Beijing’s stern oath-taking interpretation has left the opposition stammering for a response that resonates. Critics warn of the dire consequences for our international image. They just don’t get it. We’re talking about a regime obsessed with national security. International image means nothing if Beijing believes that Hong Kong’s independence movement is a national security threat. When it draws a line, nothing – not international image, Occupy, or riots – will make it budge.

Did the opposition care about international image when it turned our legislature into a house of thugs who hurled missiles at government officials? What about our international image when opposition legislators scuffled with security guards to help Leung and Yau enter the Legislative Council because they were duly elected, yet mocked the duly elected Legco president?

Opposition legislators have held unity press conferences to condemn Beijing’s interpretation, the Legco president’s refusal to let the Youngspiration pair retake their oaths, and the chief executive’s court action against the two. They claim they disagree with the pair’s behaviour but not once did they hold a joint press conference to condemn the two or even to demand that they apologise.

It would have been far better for Beijing to let our courts decide the Leung and Yau case. Who knows, Beijing may not have meddled if the opposition had sidelined the pair by sending an unequivocal message that it wants no part of the independence movement. Beijing now has the pair’s heads on spikes. More heads may roll. So who’s sorry now?

http://www.scmp.com/news/hong-kong/politics/article/2044044/too-late-apologise-hong-kong-localist-duo-after-beijings

Beijing Slams Hong Kong ‘Separatist’ Threat

November 7, 2016

Communist Party invokes national-security provision, in warning to pro-democracy camp—but strategy isn’t without risks

Demonstrators throng the streets in Hong Kong.
Demonstrators throng the streets in Hong Kong. REUTERS
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Nov. 7, 2016 12:52 p.m. ET

BEIJING—China’s Communist Party leadership delivered a sharp warning to Hong Kong’s pro-democracy camp, taking aim at any officials deemed to defy the central government’s authority in the semiautonomous city.

In effectively barring two would-be Hong Kong lawmakers from taking their seats because they had insulted China, top legislators in Beijing invoked a national-security provision in Hong Kong’s miniconstitution to warn any lawmaker, senior civil servant or judicial officer against flouting their oath of office, which pledges allegiance to China.

Officials from the National People’s Congress Standing Committee justified their ruling Monday as necessary to curb “separatist” threats in Hong Kong, where dismay over heavy-handed Chinese rule flared into mass protests in 2014.

Critics said the move was one of Beijing’s most aggressive interventions into Hong Kong’s semiautonomy and rule of law that have underpinned the former British colony’s economic success. On Sunday, thousands took to the streets in the city to protest Beijing’s decision to weigh in on the controversy around the two local politicians.

Some Hong Kong pro-democracy lawmakers and political scientists say Beijing’s ruling lumps together a broad spectrum of voices for greater autonomy under a pro-independence banner that’s characterized as a threat to China’s unity—adding to central government efforts to stifle dissent in the city.

Warnings about the separatism threat are “just a red herring,” said Willy Lam, an adjunct professor at the Chinese University of Hong Kong. “This is to justify draconian tactics against the broader pan-democracy coalition and squeeze the public sphere in Hong Kong…under the pretext of preserving national sovereignty.”

Hong Kong has largely administered itself since returning to Chinese rule in 1997, thanks to a governing charter—the Basic Law—that accords the city a large degree of political autonomy as well as its own currency and judiciary. Even so, Beijing retains the power to issue binding interpretations on the charter, which it had exercised only four times before Monday.

The latest ruling stemmed from a dispute over whether the two Hong Kong politicians, democratically elected to the city’s legislature in September, can retake their oaths of office. The pair’s efforts to swear in as lawmakers had been suspended, pending Hong Kong legal proceedings, after they modified their oaths to pledge to defend a “Hong Kong nation,” while displaying a banner stating “Hong Kong is not China.”

A protester held a banner near the China Liaison Office during a march on Sunday to protest Beijing’s intervention in Hong Kong’s oath-taking controversy.
A protester held a banner near the China Liaison Office during a march on Sunday to protest Beijing’s intervention in Hong Kong’s oath-taking controversy. PHOTO: EUROPEAN PRESSPHOTO AGENCY
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Standing Committee Deputy Secretary-General Li Fei, speaking to reporters Monday, angrily denounced the pair as “traitors,” saying their display during their swearing-in attempt—including their use of a derogatory Japanese term for China—was “abominable.”

Mr. Li read passages from a history of Hong Kong that described nurses being raped and doctors being stabbed to death during the Japanese invasion in 1941. He said those who supported “national and ethnic traitors” becoming members of Hong Kong’s Legislative Council “are occupying the same position as the fascists did back then.”

Mr. Li espoused a broad definition of what constitutes “separatist” advocacy, saying it includes calls for Hong Kong’s self-determination—a position some pro-democracy politicians say means demanding more freedoms from Beijing but not independence.

Such rhetoric suggests that Beijing is seizing on the oath-taking controversy to add pressure on more moderate political voices in Hong Kong, according to Claudia Mo, a lawmaker from the city’s pro-democracy Civil Party.

“Ever since the Umbrella Movement, Beijing has decided that Hong Kong is uncontrollable,” Ms. Mo said, referring to the 2014 pro-democracy protests. “The writing was on the wall.”

Pro-Beijing Hong Kong legislators held up placards in support of a ruling by the central government on two elected pro-independence lawmakers on Monday.
Pro-Beijing Hong Kong legislators held up placards in support of a ruling by the central government on two elected pro-independence lawmakers on Monday. PHOTO: ANTHONY WALLACE/AGENCE FRANCE-PRESSE/GETTY IMAGES
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Beijing’s approach risks blowback, political observers say, potentially by galvanizing segments of Hong Kong society—particularly younger residents—around the pro-democracy camp. But the cost of inaction may be even greater for Chinese President Xi Jinping, who has honed an image as a firm nationalist and strong-arm leader, according to Mr. Lam, the Hong Kong academic.

In a document explaining Monday’s ruling, the Standing Committee said that advocacy of Hong Kong independence violates a provision in the Basic Law known as Article 23, which calls on Hong Kong authorities to enact laws prohibiting “treason, secession, sedition [and] subversion” against the central government. The city has yet to pass such laws; an attempt to do so in 2003 was withdrawn following mass public protests.

The Standing Committee’s comments are “a reminder from Beijing that Hong Kong can’t indefinitely postpone the enactment of its own security laws,” said Rao Geping, a law professor at Peking University who is also a member of the NPC’s Basic Law Committee.

Hong Kong Chief Executive Leung Chun-ying appeared to admit as much, telling reporters on Monday that new concerns about independence advocacy have given greater urgency to the need to enact laws implementing Article 23. He didn’t elaborate.

Legal scholars say the Hong Kong government may face fresh public opposition should it renew attempts to pass national-security laws. A potential workaround for Beijing is to use its powers to indirectly shape Hong Kong law, as it did Monday, according to Alvin Cheung, a doctoral student of authoritarian legal regimes at New York University.

“Beijing is now equating analytically distinct concepts” like self-determination and preservation of Hong Kong’s semiautonomy with calls for independence and threats to national security, Mr. Cheung said. Fears over Hong Kong independence are “being used as a pretext to entrench political control.”

Write to Chun Han Wong at chunhan.wong@wsj.com and Josh Chin at josh.chin@wsj.com

http://www.wsj.com/articles/beijing-slams-hong-kong-separatist-threat-1478541176?mod=whatnext&cx_navSource=cx_picks&cx_tag=contextual&cx_artPos=5#cxrecs_s

Alex Lo in Hong Kong: Suddenly, everyone is a constitutional expert.

November 7, 2016

By South China Morning Post Columnist Alex Lo

Rather than inviting Beijing to step in, localist lawmakers involved in oath-taking saga should have been advised to resign and trigger a by-election

Tuesday, November 8, 2016, 1:39am
 

Suddenly, everyone is a constitutional expert. I will leave the full legal implications of the latest interpretation by the nation’s parliament to those learned souls. Not a few of them belong to that party of barristers, the Civic Party.

Its members, lawmakers Alvin Yeung Ngok-kiu and Dennis Kwok Wing-hang, rounded on Beijing and the Standing Committee of the National People’s Congress yesterday. Maybe their criticism is right, maybe not. Maybe the NPC interpretation of Article 104 of the Basic Law really is more harmful than beneficial. I am no lawyer so I can’t argue with them.

I do find it ironic, though, that they should be the ones to complain. They and their party have done more than anyone to goad on those two star-crossed lawmakers-elect, Sixtus Baggio Leung Chung-hang and Yau Wai-ching of the party Youngspiration, thereby provoking the NPC’s heavy-handed response.

The whole thing might have been avoided if there had been fewer lawyers and more proper politicians at the Civic Party who could think a few steps ahead – instead of forever reacting to faits accomplis.

Instead of going out of their way to encourage Leung and Yau in the two’s offensive and pointless disruptions of the Legislative Council, they and other pan-democrats should have convinced them to resign.

That would automatically trigger a by-election, which they could claim to be another de facto referendum on their cause. It would also undermine any rationale for the government to persist with its judicial review and for the central government to launch an NPC interpretation.

There has also been a precedent, set by five pan-democrat lawmakers’ resignations in 2010, who were then re-elected. Of course, the government plugged the loophole with an amendment in 2012 that disqualifies any lawmaker from running in a by-election within six months of them resigning. But there would be no shortage of other localist candidates to take the places of Leung and Yau in any by-election.

Alvin Yeung yesterday warned pro-establishment lawmakers not to think they could just pick up the soon-to-be vacated seats left by Leung and Yau. If only he had thought of triggering a by-election earlier and helped avoid the intervention by the NPC.

It’s true Leung and Yau might have refused to resign, but then they might not have. The NPC’s Standing Committee might have produced an interpretation anyway, even if the pair had resigned, but then it might not have. Now it’s too late, and we are faced with a by-election anyway.

http://www.scmp.com/comment/insight-opinion/article/2043775/theres-no-method-madness

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China Steps In To Hong Kong Politics, Legal Dispute: Elected pro-independence legislators cannot serve, must be investigated

November 7, 2016

“All traitors who sell out our country will never meet good ends.”

China’s parliament has effectively barred pro-independence legislators from the territory’s Legislative Council. The move by the Communist party was made through a controversial reading of Hong Kong’s constitution.

Hong Kong — Police armed with pepper spray and batons drive back protesters on Sunday, November 6, 2016.

The interpretation of Hong Kong’s Basic Law stipulates that lawmakers must swear allegiance to the city as part of China when they take office. At a swearing-in ceremony last month, two recently elected Hong Kong lawmakers, Sixtus Leung and Yau Wai-ching, altered their oaths to insert a disparaging Japanese term for China.

The stunt last month upset Beijing, which considers talk of independence to be treason. In issuing its ruling on Monday, it said the actions of the two lawmakers “posed a grave threat to national sovereignty and security,” the state Xinhua news agency reported.

Li Fei, deputy secretary general of China’s top legislative panel, said that the comments amounted to an intentional insult. “All traitors who sell out our country will never meet good ends,” he said.

Now the Beijing’s National People’s Congress says that by deliberately altering their oaths, their swearing-in “should be determined to be invalid, and cannot be retaken.”

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 Chief Executive Leung Chun-ying explains his plan to fully implement Beijing’s ruling in Hong Kong. Photo: Dickson Lee, SCMP

Hong Kong’s leader, Leung Chun-ying, told reporters that he and the city government would “implement the interpretation fully.” It also says those who advocate for independence are not only disqualified from election and from assuming posts as lawmakers, but should also be investigated for their legal obligations.

Deepening rift with mainland

Yau and Leung were among several Hong Kong lawmakers campaigning for self-determination who won seats in September polls. Having them disqualified from office would be a favorable outcome for China’s Communist leaders, who have become increasingly uneasy with the city’s growing independence movement.

The decision to invoke a rarely used power to interpret the constitution marks Beijing’s most direct intervention in the semi-autonomous city’s political system since it was returned to Chinese rule in 1997.

Thousands of people took to the streets in Hong Kong on Sunday to demand that China’s central government stay out of the dispute. Fears about China’s increasing encroachment on freedoms in the former British colony prompted mass protests in 2014.

Britain transferred Hong Kong to Chinese control under a “one country, two systems” formula that gave the territory wide-ranging autonomy, including judicial freedom guided by a mini-constitution called the Basic Law.

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“They openly advocated Hong Kong independence, insulted the country, endangered national unity, territorial integrity and national security,” Liao says. “The Standing Committee deemed there was a need to interpret the Basic Law to address the qualifications of these people.”

nm/kms (Reuters, AP, AFP, dpa)

http://www.dw.com/en/beijing-ruling-to-bar-hong-kong-pro-independence-lawmakers/a-36286741

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Courting controversy in Hong Kong over the Legislative Council oath-taking controversy

November 3, 2016
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South China Morning Post
Friday, 04 November 4, 2016, 1:19 a.m.
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The bitter controversy over the potential disqualification of localist lawmakers Sixtus Baggio Leung Chung-hang and Yau Wai-ching turned into a full-blown court battle on Thursday, as top lawyers for three parties – the duo, the government and the Legislative Council president – argued their cases.

The day in court not only addressed the specific acts of the Youngspiration pair and how they insulted China, but even turned into an intellectual debate. The lawyers clashed over to what extent the doctrine of separation of powers existed in Hong Kong, and whether and to what extent judges should interfere in the affairs of the legislature.

Despite the case centring on the Basic Law and allegiance to China, English and Australian legal precedents were cited – some dating back to the 17th and 18th centuries.

 Barrister Benjamin Yu at the High Court. Photo: David Wong

Benjamin Yu SC, counsel for Chief Executive Leung Chun-ying and ­Secretary for Justice Rimsky Yuen Kwok-keung:

Interpretation of the Basic Law  It is the stance of the Hong Kong ­government that the issues in question could and should be resolved within the SAR judicial system.

The SAR government did not ask the National People’s Congress Standing Committee to interpret the Basic Law and was seeking confirmation from Beijing about the move reported in the media.

The media reported that a ­University of Hong Kong academic said in ­unfounded speculation that because the Hong Kong government had no confidence in the court, it had sought the NPCSC interpretation. That was ­furthest from the truth.

Oath taking is a constitutional ­requirement  Basic Law Article 104 states that Legco members must, when assuming office, “swear to uphold the Basic Law of the HKSAR of the People’s Republic of China and swear allegiance to the HKSAR of the People’s Republic of China” in accordance with the law.

 Legislator Edward Yiu Chung-yim was the third lawmaker whose oath was originally rejected. He retook the oath at Legco in Tamar one week later. Photo: Sam Tsang

The requirement of Article 104 was transparently obvious and was a ­“mandatory constitutional obligation” imposed on all lawmakers-elect. The upholding of the Basic Law and the ­acceptance of the fact that the HKSAR is an inalienable part of China was ­fundamental to the ­person being ­allowed to assume office.

Section 19 of the Oaths and Declarations Ordinance requires a legislator to take the Legislative Council oath as soon as possible after the start of his term of office. The oath to be taken is prescribed.

Yau Wai-ching and Sixtus Baggio Leung Chung-hang declined or ­neglected to take the Legco oath  There was no doubt that the pair ­declined or neglected to take the Legco oath after each of them had been “duly requested” to do so. Non-compliance should result in the lawmakers vacating their office under section 21 of the Oaths and Declarations Ordinance.

The constitutional relationship ­between the HKSAR and China was precisely the focus of deliberate challenge and ridicule by Leung and Yau, who used the term “Hong Kong nation”, deliberately mispronounced China as “Geen-na” or “Shee-na” and displayed a banner bearing the words “Hong Kong is not China”.

 Lawmaker-elect Yau Wai-ching displayed a banner stating ‘Hong Kong is not China’ during the 6th Legco council oath taking session. Photo: Sam Tsang

Leung also crossed his index and middle fingers, which could only mean, in context, that he was lying or at least was not sincere in taking the oath.

Yau went to the extreme of using an “f” word to replace the word “Republic”. The inevitable inference was she was showing contempt for China, while respect for the country was absolutely fundamental to the “one country, two systems” concept in the Basic Law.

The conduct of Leung and Yau was plainly a rehearsed, calculated and ­coordinated attempt to advocate Hong Kong’s ­independence from China.

The Legco president has no right to administer the oath to Leung and Yau a second timeThe failure of Leung and Yau was not due to any inadvertence, mistake or genuine misunderstanding, so there was no reason whey they should be ­afforded a further chance to take the oath. If a person declined to take the oath after he was asked to do so, his or her office becomes vacant. If the office is vacated, the president does not have the power to administer the oath again

Should the court follow the principle of non-intervention (in legislative ­affairs) and separation of powers?The separation of powers enjoyed in Hong Kong is different from that in the US, Australian and British models. In Hong Kong, the Basic Law and not ­Legco is supreme. The case is not concerned with the internal workings of Legco like ­filibustering, but Article 104 of the Basic Law. The court has to ­protect Article 104. The principle of non-intervention cannot override ­Article 104.

The localists should not be immune from legal action because immunity as provided for by the Basic Law covers only statements, not their oath taking. Their freedom of speech is also not an issue because the question is whether they took the oath properly.

Should the chief executive initiate the legal action or should he rely on the justice secretary as the Legislative Council Ordinance states?

There is a duty under Articles 2 and 48 of the Basic Law for the Hong Kong ­government to be responsible for the implementation of the Basic Law. The chief executive has a special ­obligation in ­ensuring compliance.


Hectar Pun Hei SC for Sixtus Baggio Leung Chung-hang and Philip Dykes SC for Yau Wai-ching

The court has no power to interfere with the Legco president’s decision [1884 UK case in which court refused to interfere with a resolution of the House of Commons that restrained MP Charles Bradlaugh from taking the oath]Yau Wai-ching’s case resembled the facts of the Bradlaugh case in the UK. It is determinative of the issue of privilege and exclusive cognizance.

After MP Charles Bradlaugh had been harried in the courts for presuming to vote when he had not been sworn in, he applied to the speaker of the house to be given the opportunity to take the oath.

Other members objected because in earlier litigation he had made it clear that, as an atheist, he would not regard himself bound by the oath. Members voted to exclude him from the house.

Bradlaugh sought a declaration that his exclusion was unlawful and that the serjeant-at-arms should be restrained from stopping him from returning and taking the oath.

The issue of taking the oath, although a statutory requirement and not just a procedural issue, as in this case, was held to be “a matter relating to the internal management of the procedure of the House of Commons” so that the court “had no power to interfere”.

The judges said “what is said or done within the walls of parliament cannot be inquired into in a court of law. The jurisdiction of the houses over their members is absolute and exclusive. The House of Commons has the exclusive power of interpreting the statute”.

The court should refuse to declare the Legco president’s decision void and to restrain Baggio Leung from taking the Legco oath afresh based on the president’s decision.

Chapter 4 of the Basic Law 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 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.

In many ways non-compliance with legal procedures when making laws under the Basic Law can be regarded as a more weighty constitutional issue than whether the Legco president was right or wrong when he decided to allow Yau Wai-ching another chance to take the oath.

The court should not lose sight of its roleThe courts will only encroach on matters which would appear to be subject to legislative privilege only in the clearest cases where the court can say with a great degree of confidence that the immunity or privilege had been displaced a Basic Law right.

The government’s interpretation of the Oaths and Declarations Ordinance goes completely against the constitutional grain of the Basic Law.

It would be unimaginable if the court was to look at the merits in each case to decide whether an oath was valid. That will make the judge very busy. That is simply not workable.

There is no question of automatic ­vacation of a lawmaker’s office  A lawmaker has to resign to vacate his office. You have to do something to ­vacate your office.

The Basic Law provides for a separation of powers   The oath-taking controversy should be resolved by the Legislative Council itself through a political process rather than a judicial process. The issue must stay ­inside Legco.

Chief Executive Leung Chun-ying wrongly put his name on the case The law says only the secretary for justice shall represent the government in court proceedings involving Legco.

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 made no reference as to whether he was an elector in the constituency … but [Leung Chun-ying] still sued in the capacity of an elector.

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

 Jat Sew-tong (centre) at the High Court. Photo: David Wong

Jat Sew-tong SC, counsel for Legislative Council president Andrew Leung Kwan-yuen:

Judicial review against the Legco president misconceived  The Legco president was not connected with and did not condone the actions of Sixtus Baggio Leung Chung-hang and Yau Wai-ching in their oath-taking. He was unnecessarily brought into the hearing as a respondent, giving the wrong impression that the executive branch intended to exert pressure on the legislature. The government should avoid any action of political sensitivity, but its counsel had yet to address this point.

The Legco president has the power to decide whether to let Leung and Yau retake the oath  Article 72 of the Basic Law gives the Legco president the constitutional duty to ­preside over meetings, decide on the agenda of meetings and exercise other powers as prescribed in the Legco rules of ­procedure.

“Presiding over meetings” meant he could exercise orderly, fair and proper control over such gatherings, including making the decision on who was allowed to attend, participate in and vote at meetings. It therefore followed that the Legco president had the power to decide whether a member had validly taken the oath and was entitled to attend a ­meeting.

While the government argued that Leung and Yau had declined to take the oath and therefore should be disqualified under section 21 of the Oaths and Declarations Ordinance, the Legco president should not be concerned with the ordinance because ultimately, he already had a constitutional duty under Article 72 of the Basic Law to make decisions.

Furthermore, it would be a very serious matter to hold under the ordinance that an elected Legco member had ­vacated his or her office because they ­declined or neglected their oath.

Irreparable damage might be caused by any decision to disqualify them – not only to the elected members, but also to Legco as a whole and the community at large.

Given the potentially serious consequences that might follow if the Legco president’s decision was found to be wrong [in court], the better course to chart would be to allow them to retake the oath. If they demonstrated by conduct that they were not prepared to take the oath properly once again, the Legco president would then have more solid grounds to decide they had declined to take the oath.

Even if a lawmaker had “become a murderer”, it would still require a two-thirds majority of votes in Legco to disqualify him or her, in accordance with Article 79 of the Basic Law.

Government is self-contradictory  It was contradictory for the government’s counsel to assert that the president was not a final arbiter in the matter on the one hand, and still be obliged to make a decision to invalidate the duo’s vows on the other.

http://www.scmp.com/news/hong-kong/politics/article/2042822/courting-controversy-hong-kong-over-legislative-council-oath

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