Duo lose appeal against disqualification

Judges: NPCSC interpretation is binding on courts

The Court of Appeal in Hong Kong on Wednesday rejected the appeal of two separatist legislators-elect and upheld a previous ruling that disqualified them and vacated their seats in the Legislative Council.

Briefly

Dismissing the main argument submitted by the defense counsels for the duo, Sixtus Leung Chung-hang and Yau Wai-ching, who declined to take the official oath during their swearing-in ceremony on Oct 12, the appellant court said in its 41-page judgment that oath-taking by LegCo members — the city’s legislature — is a constitutional requirement stipulated under Article 104 of the Basic Law, rather than a LegCo affair.

“When a constitutional requirement is at issue, the common law doctrine of separation of powers and of nonintervention must give way to the court’s constitutional duty to adjudicate and rule according to the Basic Law,” the judgment stated.

The three appellant judges rejected arguments that the ruling would undermine the authority of LegCo, explaining that the court had the authority to adjudicate to ensure that legislators acted lawfully and in line with the Basic Law.

The ruling clarified that immunity from suit granted to legislators under the law’s Article 77 did not extend to the swearing-in for assuming office.

The court dismissed the defense counsels’ claim that the latest interpretation of the Basic Law by the nation’s top legislature was an amendment to the Basic Law and therefore not binding. The three judges unanimously acknowledged that the interpretation sets out the true and proper meaning of Article 104 of the Basic Law, and is binding on courts in Hong Kong.

The top legislature, the National People’s Congress Standing Committee, issued an interpretation of Article 104 of the Basic Law on Nov 7, clarifying the implications and requirements of oath-taking by Hong Kong legislators-elect.

The city’s High Court ruled on Nov 15 that the two must be disqualified as lawmakers.

Within 21 days after the judgment, meaning by Dec 6, the LegCo Secretariat ought to publish the two vacancies, so that the government can proceed with arranging a by-election for the seats.

Facing the Dec 6 deadline, LegCo President Andrew Leung Kwan-yuen said on Wednesday that the LegCo Secretariat will address the issue in the coming days.

The defiant pair appeared unapologetic on Wednesday after the Court of Appeal’s verdict, saying that they were considering appealing to the city’s Court of Final Appeal.

Brothers in arms