Hong Kong Politics & Protest

Legal challenge against localist duo was not ordered by Beijing, says Sec. for Justice

Secretary for Justice Rimsky Yuen Kwok-keung has said the legal challenge brought against two localist politicians to prevent them retaking their oaths as lawmakers was not ordered by the central government in Beijing.

On Tuesday night, the High Court denied an application for an interim injunction launched by the government to block Youngspiration politicians Sixtus “Baggio” Leung Chung-hang and Yau Wai-ching from re-taking their pledges at the legislature on Wednesday. The government’s leave of application for a judicial review was, however, granted and a hearing is scheduled for November 3.

When asked by reporters on Wednesday morning if the government received orders to launch the challenge, Yuen said: “There were not any instructions from the central government.”

Rimsky Yuen Kwok-keung

Rimsky Yuen Kwok-keung. Photo: TVB screenshot.

“[W]e think that, in Hong Kong’s legal system, we have the responsibility to do this,” he said. “The oath taking is a responsibility stipulated by the Article 104 of the Basic Law, it is a matter of constitutional responsibility, a prerequisite for lawmakers to commence their duties.”

“This is a very serious question, a major matter of right and wrong, we cannot allow lawmakers – who did not fit with legal requirements, who did not exercise their constitutional responsibilities – to take office as actual lawmakers and perform their duties.”

Yuen said the matter has to be handled by the court on November 3, and the government will “respect the law and proceed according to existing mechanisms.”

Baggio Leung Yau Wai-ching

Baggio Leung and Yau Wai-ching. Photo: Stanley Leung/HKFP.

Yuen also said that the Department of Justice’s view was that the matter could be handled by Hong Kong’s courts.

“Therefore the Department of Justice’s view is that – for now – we do not need to request an interpretation of the Basic Law by the National People’s Congress,” he said.

Yuen denied that the government’s action affected the separation of powers.

“If the legislature or the president of LegCo have different views than the executive branch, the most appropriate way to handle the matter is to give it to the court. This is an approach that respects the rule of law, therefore it is not a case of the executive branch disrespecting the LegCo or not honouring LegCo’s operations,” he said.

In 2012, former lawmaker Raymond Wong Yuk-man replaced words such as “Republic” and “Special Administrative Region” with coughs in his first swearing-in attempt. Wong’s oath was only rejected after former Legislative Council president Jasper Tsang was elected and revoked his pledge. At his second swearing-in, Wong read the full names of China and Hong Kong at an unusual pace, and shouted “Overthrow the Chinese Communist regime, down with CY Leung” immediately after his pledge. However, despite protests by pro-Beijing politicians, his second oath was accepted by the president.

HKFP fast facts fastfacts ribbon banner

How is the government trying to prevent elected Youngspiration politicians from retaking their oaths as lawmakers?

Text adapted from AFP:  Hong Kong‘s leader sparked fury after he launched a court bid against two pro-independence lawmakers which could block them from taking up their parliamentary seats.

Baggio Leung Yau Wai-ching

Baggio Leung and Yau Wai-ching. Photo: Stanley Leung/HKFP.

Hong Kong was handed back by Britain to China in 1997 under an agreement protecting its freedoms for 50 years, but there are concerns those liberties are being eroded. Rising tensions have sparked calls for Hong Kong to break completely from Beijing and a new wave of legislators who were voted in last month support independence and self-determination.

Chief executive Leung Chun-ying’s late-night court bid on October 19 came after new pro-independence lawmakers Yau Wai-ching and Baggio Leung draped themselves with “Hong Kong is not China” banners while taking their oath of office on October 12 in the Legislative Council (Legco)Hong Kong‘s lawmaking body.

The oath specifies Hong Kong is a special administrative region of China.

The pair’s pledges were rejected after both refused to pronounce China properly. Yau was heard to replace the words “the People’s Republic of China” with “the People’s refucking of Zeena”.

Newly-elected Legco president Andrew Leung – a pro-Beijing lawmaker – had indicated he was prepared to give them a second chance and both were expected to take the oath again Wednesday morning.

But at the eleventh-hour the justice department, acting for the chief executive and the justice secretary, sought a review of that decision, arguing they should be disqualified based on their first oath.

The Legco president opposed the application.

In a hearing Tuesday night at the High Court, Baggio’s lawyer Hectar Pun said his client “does not accept that the chief executive has any standing to mount any legal proceedings”.

hectar-pun

Hectar Pun. Photo: Stanley Leung/HKFP

But department of justice counsel Johnny Mok said the lawmakers had brought the trouble upon themselves.

Judge Thomas Au refused to grant an application for an interim injunction against the oaths being retaken Wednesday.

But he agreed to allow the requested judicial review into the decision to give them a second chance, which will go ahead on November 3.

It is unclear how the judicial review will affect their future as lawmakers if they are successfully sworn in on Wednesday.

Baggio described the legal bid as a “political decision”, and accused the chief executive of ambush.

What is a judicial review?

Judicial review is a formal mechanism of evaluating the decision-making process of public bodies. It mainly reviews administrative decisions they make, and looks at whether a law or administrative decision is compatible with the Basic Law, Hong Kong’s mini-constitution.

high court

Photo: HKFP.

An example of judicial review of an administrative decision is Choi Hoi-dick v. Secretary for Home Affairs in 2007, when lawmaker Eddie Chu unsuccessfully challenged the legality of the government’s refusal to declare the Queen’s Pier a “monument.”

For a judicial review of the constitutionality of a law, an example would be Leung TC William Roy v. Secretary for Justice in 2006, in which the Court of Appeal held that the law prohibiting consensual male homosexual sex under age 21 was discriminatory based on sexual orientation and hence unconstitutional.

What is the separation of powers?

separation of powersSeparation of powers refers to the division of government into distinct branches – the executive, legislature, and judiciary – to prevent any one branch from overstepping their constitutional roles and abusing concentrated power.

The executive is generally referred to as the “government,” which oversees the daily administration of the territory’s bureaucracy. The Legislative Council is the legislature or parliament of Hong Kong, while the judiciary includes all levels of courts.

However, the constitutional powers of the three branches in Hong Kong are not equal. For example, under Article 74 of the Basic Law, lawmakers can only introduce bills relating to government policies with the consent of the chief executive, and cannot introduce bills relating to public expenditure, political structure and the operation of the government. This limits the lawmaking power of the legislature.

court-of-final-appeal-2

Court of Final Appeal. Photo: GovHK.

That said, the judiciary is generally reluctant to interfere in the internal affairs of the legislature. In Leung Kwok Hung v. President of the Legislative Council in 2007, lawmaker Leung Kwok-hung unsuccessfully challenged the rule that prevents legislators from amending bills that have an impact on public expenditure. Leung also raised the issue of whether the court has jurisdiction over the legislature.

In holding that the court does have jurisdiction over the legislature, the Court of First Instance gave a word of caution that such jurisdiction, “having regard to the sovereignty of LegCo under the Basic Law, should only be exercised in a restrictive manner.”

Could Beijing interpret the Basic Law in the case of the Youngspiration politicians?

Possibly. Whether the Court of First Instance rules in favour of the government or not, the parties can appeal to the Court of Appeal or the Court of Final Appeal, Hong Kong’s top appellate court.

In the event that the Court of Final Appeal agrees to hear the appeal, the court may decide to refer the case to China’s top legislative body, the Standing Committee of the National People’s Congress (NPCSC). It has only done it once, in Democratic Republic of the Congo v. FG Hemisphere, a case in 2011 concerning the principles of state immunity.

Article 158 of the Basic Law confers the power of interpreting the territory’s mini-constitution on the NPCSC. In other words, the NPCSC’s interpretations of the Basic Law are final and legally enforceable.

Hong Kong’s judiciary has debated the scope of the NPCSC’s interpretative power. In Ng Ka Ling v. Director of Immigration in 1999, the Court of Final Appeal took a strong stance in defending judicial autonomy. But about a year later, in Lau Kong Yung v. Director of Immigration, the Court held that the NPCSC’s power is “plenary” in that it can interpret all of the provisions of the Basic Law at anytime.

The Court of Final Appeal and the National Emblem.

The Court of Final Appeal and the National Emblem. Photo: Stand news and Wikimedia Commons.

Is there any precedent for Beijing interpreting Hong Kong's Basic Law?

The NPCSC has interpreted the Basic Law on its own initiative once, in a case relating to the election method for choosing the chief executive in 2004.

In turn, the Hong Kong government has asked the NPCSC to interpret the Basic Law twice: first in Ng Ka Ling in 1999, when the government disagreed with the Court of Final Appeal’s decision entitling all Chinese citizens with Hong Kong parents to the right of abode. Secondly, in the case of former chief executive Donald Tsang, when he asked the NPCSC in 2005 to interpret the law related to the term of office of chief executives when replacing predecessors who vacated office before their terms expire.

Such interpretations are always controversial due to the public perception that Beijing is undermining Hong Kong’s judicial independence.

What legal basis does the government have for this judicial review?

The government has argued that the oaths of Youngspiration’s incoming lawmakers Yau Wai-ching and “Baggio” Leung Chung-hang contravened Article 104 of the Basic Law, and the Oaths and Declarations Ordinance (Cap. 11).

Article 104 of the city’s mini-constitution stipulates: “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.

hong kong basic law one country

Photo: StandNews.

Section 21 of the Oaths and Declarations Ordinance lays down the consequence of non-compliance. It says: “Any person who declines or neglects to take an oath duly requested which he is required to take by this Part, shall – (a) if he has already entered on his office, vacate it; and (b) if he has not entered on his office, be disqualified from entering on it.

Are there past cases of lawmakers being allowed to retake their oaths?

In 2012, former lawmaker Raymond Wong Yuk-man replaced words like “Republic” and “Special Administrative Region” with coughs in his first swearing-in attempt. Wong’s oath was only rejected after former Legislative Council president Japser Tsang was elected and revoked his oath.

In his second swearing-in, Wong read the full names of China and Hong Kong at an unusual pace, and shouted “Overthrow the Chinese Communist regime, down with CY Leung” immediately after his pledge.

Despite protests by pro-Beijing politicians, Tsang accepted Wong’s second oath.

Legal challenge against localist duo was not ordered by Beijing, says Sec. for Justice