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

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.