Duo lose ap­peal against dis­qual­i­fi­ca­tion

Pair said that they are con­sid­er­ing tak­ing the case to a higher court

China Daily (USA) - - CHINA - By WILLAWU in Hong Kong willa@chi­nadai­lyhk.com

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.

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 Leg Co 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.

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