CFA confirms NPCSC interpretation binding

HK’s top court finds ‘no reasonably arguable basis’ for separatist ex-legislators’ appeals over oaths

Hong Kong’s top court on Friday stressed that the Basic Law interpretation by the National People’s Congress Standing Committee is binding on courts in the special administrative region.

The Court of Final Appeal made the conclusion in its written judgment released on Friday, explaining the legal basis for denying the leave of appeal filed by two former separatist lawmakers Sixtus Leung Chung-hang and Yau Waiching who sought to reinstate their Legislative Council seats.

Coming one week after the top court refused the pair’s appeal application, the written judgment added the NPCSC’s interpretation of the Basic Law “declares what the law is and has always been since the coming into effect of the Basic Law on July 1, 1997”, rendering the interpretation with retrospective effect.

Last November, the NPCSC issued an interpretation of Article 104 of the Basic Law, specifying the requirements of taking oaths sincerely and solemnly when assuming public office

The lower courts followed the NPCSC’s interpretation to disqualify Leung and Yau. The pair made a mockery of the LegCo oath while being swornin last October. Their earlier appeal was rejected by Court of Appeal in January.

The three top court judges — Chief Justice Geoffrey Ma Taoli and permanent CFA judges Roberto Ribeiro and Joseph Fok — concluded that there is no reasonable prospect for the court to accept Leung and Yau’s appeal.

The three judges wrote that the lower courts would come to the same judgment irrespective of the NPCSC interpretation as Leung and Yau’s disqualification is the “automatic consequence” of their declining or neglecting to take the LegCo oath.

In the written judgment, the judges dismissed the allegation that the NPCSC interpretation “ousted the jurisdiction of the courts”.

Meanwhile, they wrote that the non-intervention principle in LegCo affairs, which was argued by the pair, was not applicable as it is the court’s duty to rule on matters of compliance with constitutional requirements.

The judgment cited the stipulation in the interpretation of Article 104 of the Basic Law that it is a constitutional duty for LegCo members to take an oath to uphold the Basic Law and pledge allegiance to the Hong Kong SAR.

The court also noted the pair was denied a second chance to take the LegCo oath as they had been found to have “manifestly refused and willfully omitted to take the LegCo oath when requested to do so”.

Section 21 of the Oaths and Declarations Ordinance only allows LegCo members who “inadvertently omit some words of the LegCo oath or who mistakenly read the wrong oath” to retake the oath in another sitting of LegCo, the court added.

The NPCSC’s interpretation of the Basic Law declares what the law is and has always been since the coming into effect of the Basic Law on July 1, 1997.”