Youngspiration politicians Yau Wai-ching and Baggio Leung Chung-hang criticised Beijing on Wednesday for interfering in Hong Kong’s internal affairs, as the duo lost their appeal to overturn a court’s decision to disqualify them from the legislature.
Leung said they have yet to decide whether to appeal to the Court of Final Appeal, as they need to assess whether they can afford to pay a seven-figure deposit and what legal arguments to put forward. They may make a decision in the next two days, Leung said.
The Court of Appeal dismissed the duo’s appeal on Wednesday, saying that it does not have the power to decide whether Beijing’s interpretation on the Basic Law – which spelled out the legal requirements of oath-taking – is invalid. The duo argued earlier that the “interpretation” amounts to an amendment of the Basic Law, which should follow a different procedure under the mini-constitution.
Dismissing the duo’s argument, the court held: “The view of a common law lawyer, untrained in the civil law system, particularly the civil law system practised on the Mainland, is, with respect, simply quite irrelevant.”
Leung said that the Court of Appeal’s view – that Beijing’s interpretation provides the legal justification for their ousting – completely contradicts the lower court’s position that even without Beijing’s ruling, the outcome would be the same.
Leung vowed to protect the territory from Beijing’s “invisible hand” meddling in the internal affairs of Hong Kong. “I’m upset that I can’t defend the election results. As a democratically elected lawmaker, I failed to protect the system,” he said.
“This is a very serious court case for Hong Kong and it will have profound implications on our constitutional framework. Hence, we need to be very careful about our next move.”
Asked if that means the pair may not appeal to the Court of Final Appeal, Leung said they need to discuss with their lawyers as they do not want to “deal a second blow” to Hong Kong’s legal system.
“I am worried that the Court of Final Appeal will seek another interpretation if the judges believe they cannot answer the points raised before them,” Leung said. “It all depends on what legal arguments we put forth and it is important that we think this through.”
‘Low chance of success’
Barrister Ronny Tong said the pair have a low chance of succeeding if they take the case to the Court of Final Appeal. He said that since the court dismissed the duo’s appeal, the Court of First Instance’s view that it would arrive at the same conclusion even without Beijing’s ruling remains legally binding.
Regarding the pending judicial review challenges to other lawmakers, Tong said he cannot make general predictions as each case is fact-sensitive.
Lawmaker Starry Lee of the pro-Beijing DAB party said that Wednesday’s ruling confirms Beijing’s authority and power to interpret Hong Kong’s mini-constitution. “The ruling also upheld the One Country, Two System policy, Hong Kong’s rule of law and the dignity of the legislature,” she said.
She urged the duo to return their salaries and subsidies paid by the legislature as soon as possible.
Lee’s party colleague Holden Chow, who is a lawyer, said that the ruling confirmed the court’s power to decide on the validity of a lawmaker’s oath, and rejected the view of the pro-democracy camp that Hong Kong’s system is based on the doctrine of the separation of powers.
DAB lawmaker and City University law lecturer Priscilla Leung also said the court sent a clear message that Hong Kong does not have separation of powers as it is not a self-governing state.