Fur­ther ap­peals by dis­graced sep­a­ratist pair will prove fu­tile

Clau­dio de Bedin writes that the non-in­ter­ven­tion prin­ci­ple, ar­gued by Six­tus Le­ung Chung-hang and Yau Wai-ching be­fore the Court of Ap­peal, was without merit — and any fur­ther ap­peals must be re­jected

China Daily (Hong Kong) - - COMMENT - C L AU D I O D E B E D I N

On Nov 30, the Court of Ap­peal’s panel of three judges, namely Jus­tice An­drew Che­ung Kuin­ung, Jus­tice John­son Lam Man-hon and Jus­tice Jeremy Poon Shiu-chor, unan­i­mously dis­missed the ap­peal raised by Six­tus Le­ung Chung-hang and Yau Wai-ching and up­held the de­ci­sion of the High Court to dis­qual­ify them from the Leg­isla­tive Coun­cil.

Last week, the pair ex­pressed their in­ten­tion to bring the case to Hong Kong’s high­est court — the Court of Fi­nal Ap­peal.

In essence, there were three main is­sues brought be­fore the Court of Ap­peal: First, the prin­ci­ple of non-in­ter­ven­tion; sec­ond, the constitutional right of Ar­ti­cle 104 of the Ba­sic Law and the con­se­quence of non-com­pli­ance with Ar­ti­cle 104 of the Ba­sic Law; and third, whether the courts have the right to de­ter­mine the le­git­i­macy of the oath. The Court of Ap­peal up­held the High Court’s judg­ment and clar­i­fied the three main is­sues brought be­fore the Court of Ap­peal.

In my view, the prin­ci­ple of non-in­ter­ven­tion, ar­gued by the pair be­fore the Court of Ap­peal, was flawed and without merit. The prin­ci­ple of non-in­ter­ven­tion can, in most cir­cum­stances, le­git­i­mately be said to pro­vide au­thor­ity to the leg­is­la­ture to han­dle its in­ter­nal af­fairs. Hav­ing said this there are ex­cep­tions to this “rule”. It is mis­con­ceived if one were to ar­gue that this power is not lim­ited in its scope. The Ba­sic Law, which reigns supreme, clearly pro­vides for a sys­tem of a sep­a­ra­tion of pow­ers, from which the ex­ec­u­tive au­thor­i­ties, LegCo and the ju­di­ciary each de­rive their re­spec­tive pow­ers and func­tions. There­fore, checks and bal­ances are cre­ated. Un­der the Ba­sic Law, the courts have the power to “check” if the ex­ec­u­tive au­thor­i­ties and the Leg­isla­tive Coun­cil’s ac­tions fully com­ply with Hong Kong’s “mini­con­sti­tu­tion”.

The Court of Ap­peal has con­firmed that Ar­ti­cle 104 of the Ba­sic Law man­dates the constitutional re­quire­ment of oath-tak­ing by all LegCo mem­bers prior to en­ter­ing of­fice. This re­quire­ment is clearly set out in Chap­ter IV of the Ba­sic Law as a pre­req­ui­site, and pre­con­di­tion, to en­ter­ing of­fice. The Court of Ap­peal con­firmed that the Stand­ing Com­mit­tee of the Na­tional Peo­ple’s Congress’ (NPCSC) in­ter­pre­ta­tion gives the “true mean­ing of Ar­ti­cle 104 of the Ba­sic Law”. The High Court’s judg­ment and the NPCSC’s in­ter­pre­ta­tion make it clear that an oath that fails to sat­isfy the req­ui­sites of “sin­cer­ity and solem­nity” in up­hold­ing the Ba­sic Law and swear­ing al­le­giance to the Hong Kong SAR will not be rec­og­nized.

Where an in­di­vid­ual’s oath fails to com­ply with the re­quire­ments of oath-tak­ing, the Court of Ap­peal came to the same con­clu­sion as the lower courts — namely that the con­se­quence is the dis­qual­i­fi­ca­tion of the in­di­vid­ual. The judg­ment states that Sec­tion 21 of the Oaths and Dec­la­ra­tions Or­di­nance (Cap 11) is “per­fectly con­sis­tent” with Ar­ti­cle 104 of the Ba­sic Law which states that an oath is to be taken in ac­cor­dance with the law. The judg­ment and the NPCSC’s in­ter­pre­ta­tion af­firm the fact that the con­se­quences of de­clin­ing to take the oath as re­quired leads to an au­to­matic dis­qual­i­fi­ca­tion.

Oath-tak­ing in re­spect of ac­ces­sion to LegCo is a “constitutional re­quire­ment” gov­erned by the Ba­sic Law, and the courts, in my view, should have, and do have, an in­her­ent le­gal right to de­ter­mine if a po­ten­tial mem­ber of LegCo has com­plied with the Ba­sic Law which, among other things, gov­erns the le­git­i­macy of the oath. The le­gal right is pro­vided in Ar­ti­cle 19 of the Ba­sic Law, which vests in the court the power to de­ter­mine all cases in Hong Kong. By im­pli­ca­tion this, in my view, serves as a re­minder that the courts have the le­gal right which is be­ing ques­tioned.

The con­tro­versy demon­strates how the NPCSC and the three branches of the SAR govern­ment in­ter­act with each other. Hong Kong’s sys­tem is dis­tinc­tive, and unique, and should not, and can­not, be com­pared with any other sys­tem, some­thing the pair at­tempted to do in their sub­mis­sions. Our sys­tem must be cher­ished as a func­tional means for an in­no­va­tive constitutional and le­gal sys­tem.

The is­sues are, and have been made, clear. This is in the public’s best in­ter­ests. To my mind any fur­ther ap­peal to the Court of Fi­nal Ap­peal, some­thing be­ing con­sid­ered by the pair, should, and must, be re­jected, as there can be no grounds for do­ing this.

The au­thor is a Hong Kong-born lawyer.

Newspapers in English

Newspapers from China

© PressReader. All rights reserved.