On 30 November, the Court of Appeal dismissed the appeal of Leung Chung-hang and Yau Wai-ching, and found that the pair had automatically vacated their office as Legislative Councillors on 12 October. Accordingly the President of the Legislative Council had no power to give them a second chance to take the Oath of Office again.
This no doubt encouraged the Chief Executive and the Secretary for Justice to bring even more applications for judicial review in order to disqualify legislators not to their liking and distort the already skewed balance of power in Legco.
The Interpretation by the Standing Committee of the National People’s Congress (NPCSC) and the Court of Appeal decision have at least two very far reaching consequences: (1) the Court of Appeal decided that despite the usual non-intervention approach under the separation of powers principle, it has the constitutional duty to intervene in cases concerning the validity of the Oath under Article 104 of the Basic Law; (2) the courts must accept the NPCSC Interpretation (“the Interpretation”) and have no jurisdiction to deal with arguments as to its scope or effect.
The first point means that from now on, the government or any voter may challenge a legislator by saying that his Oath was not “sincere” or not “solemn” (words used in the Interpretation).
Even if the Oath has been accepted by the Legco President, the court must still intervene and conduct “a full merit review” (the term used by the Chief Judge in paragraph 39 of the Court of appeal Judgment) in order to decide objectively if the Oath was valid according to law. This has far reaching implications.
Just consider this. Every politician has enemies who will be quick to question his go0d faith. A full merit review mean that the scope is not confined to the 30 seconds of the Oath taking. His political enemies may trawl through every comment on Facebook or every activity he attended as evidence to contradict his Oath.
This is exactly what the Returning Officer did in his explanatory statement for disqualifying and disbelieving Edward Leung when he wanted to run as a candidate in the September Legco election.
Take this example. The elected legislator has in the past opposed national security legislation under Article 23 or protested against NPCSC Interpretation under Article 158. Is he being “sincere” or “solemn” in swearing that he will uphold the Basic Law?
Does upholding the Basic Law mean embracing every provision and every NPCSC Interpretation? The legislator has to give evidence and be cross-examined in court, which can be a harrowing and time-consuming experience. How does a judge adjudicate on matters such as “sincerity” “solemnity” “upholding” or “allegiance”?
Further, the Interpretation has added words “and its” such that allegiance is required not only to the SAR of the PRC but to the PRC and its SAR. Interestingly, the Court of Appeal says the issue of compliance, i.e. whether a person has validly taken the oath, only admits of one right answer.
If the legislator loses the judicial challenge, the election result and the peoples’ wishes are set aside, by-elections have to be held, the balance of power upset and the court is embroiled in all this mess. Even if the legislator survives the judicial challenge, just think of the cost, time and energy wasted in the process.
The court held that Leung and Yau “declined” to take the Oath on 12 October and automatically vacated their office as from that date by operation of law. The Legco secretariat is taking steps to reclaim all payments as from 1 October.
There are at least four more pending judicial reviews by the government. What if these four are disqualified six months or more down the road, will they have to repay everything? And what about the votes they cast in the meantime?
The second point is made in paragraphs 57 to 59 of the Court of Appeal Judgment. They say that the court has no jurisdiction to deal with arguments as to the scope and effect of the Interpretation. This is even more worrying than the first point.
During submissions, the Chief Judge is reported to have criticized Hectar Pun SC, Counsel for Leung, when the latter submitted that the Interpretation was making local law and hence exceeded the ambit of Article 158. The Chief Judge said that was arrogance and ignorance of common law lawyers and asked for evidence from a Mainland civil law expert.
Such criticism is perplexing. The court is not being asked to rule on Mainland civil law or to understand the Interpretation by applying Mainland civil law. Hong Kong courts and judges can only operate within the common law system.
Article 158 of the Basic Law authorizes the Hong Kong courts to use common law when interpreting provisions in the Basic Law. The Interpretation which “interprets” the Basic Law has become part of Hong Kong law and its scope and effect can only be applied by the Hong Kong courts using common law.
Senior Counsel was making a perfectly valid point when he submitted that the Interpretation, in detailing what it means to “decline” to take the oath, has supplemented the word “decline”, which only appears in section 21 of the Oaths and Declaration Ordinance but not in Article 104 of the Basic Law.
If the court, when applying the common law, is “audacious” enough to find that part of the Interpretation exceeds the ambit of Article 158 and is thus not binding on the Hong Kong courts, this may bring about another Interpretation overturning that outcome, but that does not mean that the Hong Kong court should apply Mainland law. It is not a matter of arrogance or ignorance, it is simply due to the difference in the two systems.
It is important to remember other provisions in the Basic Law. Article 17 provides that Hong Kong has independent legislative powers and if the NPCSC finds a law to be non-conforming, it may return the same, but shall not amend it.
Article 18 provides that national laws that apply to Hong Kong must go through Annex III. Thus the NPCSC cannot legislate for Hong Kong under the guise of interpreting the Basic Law. But if, as the Court of Appeal says, it has no jurisdiction to entertain arguments that the Interpretation has amended our local law and hence exceeded its remit, it is ignoring the protection given to us by Articles 17 and 18.
The Basic Law is our mini constitution. It has to be implemented through enactment of local laws. The recent NPCSC Interpretation seeks to interpret the words “in accordance with law” in Article 104. But there are many provisions in the Basic Law with the words “in accordance with law” or such equivalent.
Nearly all our rights are protected via such local legislation. If the NPCSC can vary such local legislation at any time and even before the judge gives his ruling, so as to tell our courts what such local laws mean or do not mean, and our courts are powerless in the face of such Interpretation, this spells the end of our last bulwark of defence.
Is there any alternative to the ruling of the court in the Leung Yau case? This will be discussed in Part 2.