Beijing’s interpretation of the Basic Law on Monday effectively barring two pro-independence lawmakers from taking their oath of office comes before a Hong Kong court had even had an opportunity to rule on a judicial review on the issue.
A judicial review case began on Nov. 3 and concluded on Nov. 4, with government lawyers arguing that the lawmakers who advocate a split from China should be banned from taking up their seats.
At the judicial review seeking to disqualify Yau Wai-ching and Sixtus “Baggio” Leung from the legislature at Hong Kong’s High Court, the government’s counsel insisted authorities had not asked Beijing to step in.
On Monday, the Hong Kong Bar Association chair Winnie Tam described the interpretation this time as “too detailed, specifying do’s and don’ts,” and is “rather quite unusual” and “not appropriate”.
Tam said on Sunday that if the interpretation of the Basic Law can clarify the law, “it is not necessarily a bad thing”.
“(An interpretation of the law) is a response, when you exercise freedom granted by law to the maximum, and touch the bottom line,” Tam said.
Andrew Leung Kwan-yuen, president of the Legislative Council, said: “I look forward to the court’s judgement on cases involving the article (104) expediently, so that the Legislative Council can resume normal operation.”
On the dozens of lawmakers who modified the wording, Leung said: “The interpretation lists the objective requirements for oath-taking.”
“Anyone who took the oath on Oct. 12 would need to fulfill the law in Hong Kong. The interpretation clarified the meaning and ambiguity (of the law), and everyone can follow up based on it.”
But the interpretation, which states that the oath must be taken accurately, completely and solemnly and sincerely, represents some of the worst privately held fears of senior judges and some government officials in Hong Kong, according to sources close to them.
The Hong Kong Bar Association has previously said an intervention by Beijing now, while a local court was hearing the case, would deal a severe blow to the city’s judicial independence and undermine international confidence in Hong Kong’s autonomy.
Pro-Beijing legislator Priscilla Leung Mei-fun, representing West Kowloon, said on Nov. 3 that an interpretation of the Basic Law would be inappropriate. Leung is a member of the Business and Professionals Alliance for Hong Kong.
Hong Kong’s justice secretary Rimsky Yuen said the government still needed time to see if the interpretation would carry any retrospective effect on other lawmakers such as Demosisto chairman Nathan Law Kwun-chung and Democracy Groundwork’s Lau Siu-lai.
Lau is possibly at risk because she was sworn in on her second attempt, while Law is in danger since he ran on a self-determination platform during the Legislative Council election. Beijing considers this stance as equivalent to pro-independence.
Yuen was speaking after China’s parliament passed an interpretation of Hong Kong’s Basic Law that says lawmakers must swear allegiance to the city as part of China, Beijing’s most direct intervention in the territory’s legal and political system since the 1997 handover.
“I have every confidence … the judiciary will defend the law and uphold the rule of law,” Yuen said at a press conference.
The oath-taking controversy made waves in the former colony, where the topic of independence from China was once regarded as taboo, but has come to the fore since the pro-democracy protests in 2014 that failed to secure any concessions from Beijing.
Additional reporting by Reuters
George Silversurfer The number of foreigners in the media in Hong Kong is probably more than locals. This concemtration is unhealthy especially it is beyond doubt thant many of the foreign editors edit articles to reflect certain views and include misinformation and innuendoes. A quota system should be introduced for foreigners in the media to curb their numbers and propaganda efforts,
AT, the home of Zionists , Nato for 1% , British Royal Vampires,SA Salafi terrorists,,,,,,,,,
There is no need to emphasize "Hong Kong Independence". Just to focus on the purpose of swearing-in is good enough to disqualify Yau and Leung.
How clearly Yau and Leung did the oath contradicting to the requirement of supportive to the Basic Law and loyalty to the SARS of PRC?
There was that "fxxxxxxpubof…". That "f word" was so insulting, totally not suitable for the occasion. Secondly, there was that change of pronunciation of China to "Chin…..xx."
The evidence is so clear.
Should they have signed an agreement/declaration before, they should be perjury prosecutions.
According to Article 104, the one who swears in must uphold Basic Law and be loyal to SARS of PRC. The way Leung and Yau did the oath showed clearly they did not intend to uphold Basic Law and be loyal of SARS of PRC. As such, they are disqualified.
Subsequently, there are people saying that they can redo the swearing-in. In this respect, it is very obvious that they are not allowed. The reason is that it is not reasonable and practical. Think. Should a deliberately wrong swearing-in can be repeated then there can be a second deliberately wrong swearing-in. Then, after the second one, there can be a third one. This makes a very good excuse for those who want to play around.
Why Lau was allowed to repeat the swearing-in. It is because that the Legco President judges that she simply makes mistakes, not deliberately.
The second big problem in this issue is whether or not a law court can have the power to do this judiciary review over the president of Legco who is alleged to have made a mistake, a very obvious mistake just referring to Article 104. With this question, it is best to see what “separation of power” and “judicial review” is.
Firstly, separation of powers refers to the division of responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.
With separation of powers in mind now, can judicial review do the checks and balances?
By definition, judicial review is a process under which executive and legislative actions are subject to review by the judiciary. A court with judicial review power may invalidate laws and decisions that are incompatible.
It is so simple. Then, why there should be an interpretation of law.
Probably, just that the duration of the whole process up to Court of Final Appeal is too long.
You are obviously unfamiliar with the new Asia Times. Check out the new owners and "experts" that came along.
A load of rubbish propaganda. Hong Kong requested Beijing for an interpretation of the Basic Law. The request was tabled and an interpretation proposed and adopted by vote. Of course the interpretation come before the verdict.
Mind you, judical independence is still maintained as it is up to Hong Kong to accept the interpretation, uphold the law and prevent anarchy. The Rule of Law is important