Hong Kong court bars pro-independence lawmakers from office in oaths row

2016-11-15

Yau Wai-ching (C) talks to the media after Hong Kong's High Court ruled against her and another pro-independence lawmaker who used their swearing-in ceremony to make a political protest, formally barring them from taking up their seats, Nov. 15, 2016. RFA.

Hong Kong's High Court on Tuesday ruled against two pro-independence lawmakers who used their swearing-in ceremony to make a political protest, formally barring them from taking up their seats after a high-level intervention from Beijing earlier this month.

Lawmakers-elect Sixtus Leung and Yau Wai-ching both vowed allegiance to the "Hong Kong Nation" and carried banners saying "Hong Kong is not China" when making their oaths on Oct. 12.

They also used a historical slur to refer to China, with Yau inserting swear-words into her oath.

But the standing committee of China's rubber-stamp parliament, the National People's Congress (NPC), intervened with an interpretation of Hong Kong's miniconstitution last week, ruling that only "solemn and sincere" oaths would be accepted from public office-holders.

High Court judge Thomas Au ruled that the duo, who are both members of the localist youth group Youngspiration, are disqualified from taking up their seats in the city's Legislative Council (LegCo).

Au said that they had lost their seats when they failed to take a valid oath of office.

Leung and Yau had demonstrated "objectively and clearly that they did not truthfully and faithfully intend" to swear allegiance and to uphold Hong Kong's miniconstitution, the Basic Law.

While Beijing's intervention was widely criticized by Hong Kong's legal profession, who said it undermined the city's judicial independence, Au said he would have reached the same conclusion with or without the interpretation.

Yau Wai-ching told reporters she had expected the ruling not to go her way.

"I realize that the government has put so much pressure on the court, with a whole range of maneuvers ... to make such a ruling, and so is to be expected," Yau said.

Sixtus Leung said the pair would appeal the decision.

"Of course, we are not satisfied with the judgement [which] simply reflects that elections in Hong Kong are meaningless, and the results can easily be overturned by the government," he told journalists after the ruling.

"We have no hesitation in deciding that we will ... appeal, if that is where we have to go to see justice served," he said, adding that he is fighting for Hong Kong's future rather than for a seat in LegCo.

By-election to fill seats

LegCo president Andrew Leung said the decision would put an end to weeks of disruption and protests in the LegCo chamber.

"I respect the judgement of the court," he said. "I sincerely hope members and the public can refocus on LegCo business."

He said the two empty seats will now be filled by by-election.

The Nov. 7 interpretation from the NPC said oaths of allegiance cannot be altered if a person wishes to take public office.

"An oath taker who intentionally reads out words which do not accord with the wording of the oath prescribed by law, or takes the oath in a manner which is not sincere or not solemn, shall be treated as declining to take the oath," the interpretation said.

"The oath so taken is invalid and the oath taker is disqualified forthwith from assuming ... public office," it said.

Amid growing fears that the election of pro-independence lawmakers in Hong Kong has sparked a political purge of opposition voices in the city, the High Court has also been asked to bar eight pro-democracy lawmakers from LegCo.

Social activist and League of Social Democrats member Leung Kwok-hung, or "Long Hair," who is one of the eight lawmakers targeted by the second judicial review, said it was extremely worrying that lawmakers could still be targeted for disqualification after their oaths had been accepted.

"If a LegCo member can still be pursued after they have taken their oath, and anything they say before or after it can also be taken to mean that their oath wasn't solemn and since, then effectively that means that the right of lawmakers to scrutinize government has been stripped away," he said.

"This is not a victory for justice, but for authoritarian power," he added.

And veteran journalist Ching Cheong, writing in the Hong Kong Economic Journal, said the idea of dual allegiance was never part of the original negotiations ahead of the 1997 handover to China, at which he was present as a journalist.

Beijing officials had only intended that Hong Kong office-holders should swear allegiance to their own city, not to China as well, he said.

"The abrupt interpretation of the Basic Law by the Chinese National People's Congress is a bellicose reminder from Beijing as to who is the real boss of Hong Kong," he wrote.

Ominous precedent for future

Ching said Tuesday's ruling could pave the way for government to get rid of lawmakers whose views it doesn't like in future.

"Will lawmakers who express dissident views ... be disqualified, since the words or deeds violate the oath of allegiance to the People's Republic of China?" he said.

And Democratic Party lawmaker James To said Beijing had overreacted in rushing through the interpretation.

"They were taking a belt and braces approach, but this wasn't at all necessary," he said. "On the contrary, the interpretation actually caused a few problems."

Lawyers staged a silent, black-clad protest last week, with many warning that the independence of Hong Kong's courts had effectively been undermined by the NPC's interpretation.

Lawmaker Starry Lee, who chairs the pro-China Democratic Alliance for the Betterment and Progress of Hong Kong (DAB), said the ruling was "just and fair," however.

"We hope that the ruling by the High Court will now put to rest the oaths row of recent days, and allow LegCo, and the rest of Hong Kong, to get back on track," Lee said.

The Global Times newspaper, a tabloid linked to ruling Chinese Communist Party mouthpiece the People's Daily, said Sixtus Leung and Yau Wai-ching had "used derogatory language insulting the Chinese nation" during their swearing-in.

It said their "challenging behavior" had prompted a public outcry, citing a protest on Sunday against independence for the former British colony attended by thousands of people.

A recent opinion survey showed that almost 40 percent of young people in Hong Kong favor independence for the city in 2047, when existing arrangements with China expire.

But Beijing has repeatedly warned that "separatist" ideas won't be tolerated in the former British colony, and recent election candidates were forced to sign a declaration rejecting independence.

Under the terms of the 1997 handover, Hong Kong was promised a "high degree of autonomy" and the continuation of its traditional freedoms for 50 years.

But journalists, lawyers and diplomats say that freedoms of speech, publication and judicial independence are fast being eroded.

Reported by Lam Kwok-lap for RFA's Cantonese Service. Translated and written in English by Luisetta Mudie.

Link to original story on RFA website