Despite being barred from entering the Legislative Council chamber on Wednesday, two Youngspiration politicians at the centre of a political drama managed to storm the legislature with the help of eight pro-democracy camp lawmakers. The meeting was brought to another premature end as chaos reigned in the chamber. But how did they gain access?
LegCo president Andrew Leung Kwan-yuen officially barred Sixtus “Baggio” Leung Chun-hang and Yai Wai-ching from entering the chamber after he performed a u-turn late Tuesday over his decision to allow them to re-take their oaths as lawmakers. He said that the pair would have to wait until a legal challenge brought by the government had been concluded. Their first oaths were rejected after they used language some deemed insulting to China.
Regardless, the duo thanked the opposition lawmakers for escorting them into the chamber on Wednesday. “Our action today proved that tyranny will only unite us,” said Baggio Leung.
Opposition forms human chain to protect Baggio Leung and Yau Wai-ching to enter the chamber pic.twitter.com/n586BLPoEU
— Kris Cheng (@krislc) October 26, 2016
Earlier Wednesday, the LegCo secretariat placed a sign outside the chamber stating the president’s decision, as guards stood near the doors.
However, ten minutes before the meeting was due to start at 11am, eight lawmakers formed a human chain around the Yau and Leung in an effort to escort them into the chamber despite the ban.
The group of eight were led by the Civic Party’s Alvin Yeung Ngok-kiu, Jeremy Tam Man-ho and Claudia Mo Man-ching.
Off to the side were Demosisto’s Nathan Law Kwun-chung, People Power’s Ray Chan Chi-chuen, social welfare sector lawmaker Shiu Ka-chun, whilst Eddie Chu Hoi-dick and architectural and surveying sector lawmaker Edward Yiu Chun-yim were guarding the back.
— Hong Kong Free Press (@HongKongFP) October 26, 2016
The short walk to the door of the chamber was only around 100 metres and took a few minutes. The area was filled with more than 50 reporters and photographers.
Heavily out-numbered, the action effectively prevented the LegCo security guards from taking action.
As journalists followed the group into the chamber, the guards requested that they leave, without any success.
The meeting was then delayed for several minutes, until the journalists were finally cleared from the chamber after interviewing and photographing the duo.
LegCo staff member forces reporters to leave chamber pic.twitter.com/uqJjget8aX
— Kris Cheng (@krislc) October 26, 2016
Yau and Leung refused to leave after President Andrew Leung ordered guards to remove them
Opposition lawmakers surrounded the pair and the meeting was suspended.
Meanwhile, Civic Passion’s Cheng Chung-tai walked to the president’s chair to protest his decision to ban the Youngspiration duo from joining the meeting.
President Leung also ordered him to leave – but as Cheng was walking towards the door, he ran suddenly and jumped back into his seat.
For the following few minutes, guards attempted to remove Cheng but failed.
Ultimately, President Leung decided the meeting could not be conducted in an orderly manner and called an early adjournment.
”How is the government trying to prevent elected Youngspiration politicians from retaking their oaths as lawmakers?”
The Legislative Council’s oath controversy arose after Youngspiration lawmakers Yau Wai-ching and Sixtus Leung Chung-hang referred to “China” as “Chee-na” – considered by some to be insulting – at the legislature’s swearing-in session in October.
The duo were asked to retake their oaths. The government subsequently requested an unprecedented judicial review and interim injunction in an effort to block Yau and Leung from being sworn in. The court rejected the injunction request but granted leave for judicial review.
Despite the decision of Legislative Council President Andrew Leung Kwan-yuen to allow Yau and Leung to retake their pledges, they were unable to proceed as pro-Beijing politicians staged a walkout.
A week after the government was granted leave for judicial review against Leung’s decision, the president announced that he will postpone the oath-taking of Yau and Leung until the legal challenge over the matter is concluded.
The government has been criticised for using the court to interfere in the internal affairs of the Legislative Council, and disregarding the principle of separation of powers.
”What is a judicial review?”
Judicial review is a formal mechanism of evaluating the decision-making process of public bodies. It mainly reviews administrative decisions they make, and looks at whether a law or administrative decision is compatible with the Basic Law, Hong Kong’s mini-constitution.
An example of judicial review of an administrative decision is Choi Hoi-dick v. Secretary for Home Affairs in 2007, when lawmaker Eddie Chu unsuccessfully challenged the legality of the government’s refusal to declare the Queen’s Pier a “monument.”
For a judicial review of the constitutionality of a law, an example would be Leung TC William Roy v. Secretary for Justice in 2006, in which the Court of Appeal held that the law prohibiting consensual male homosexual sex under age 21 was discriminatory based on sexual orientation and hence unconstitutional.
”What is the separation of powers?”
The executive is generally referred to as the “government,” which oversees the daily administration of the territory’s bureaucracy. The Legislative Council is the legislature or parliament of Hong Kong, while the judiciary includes all levels of courts.
However, the constitutional powers of the three branches in Hong Kong are not equal. For example, under Article 74 of the Basic Law, lawmakers can only introduce bills relating to government policies with the consent of the chief executive, and cannot introduce bills relating to public expenditure, political structure and the operation of the government. This limits the lawmaking power of the legislature.
That said, the judiciary is generally reluctant to interfere in the internal affairs of the legislature. In Leung Kwok Hung v. President of the Legislative Council in 2007, lawmaker Leung Kwok-hung unsuccessfully challenged the rule that prevents legislators from amending bills that have an impact on public expenditure. Leung also raised the issue of whether the court has jurisdiction over the legislature.
In holding that the court does have jurisdiction over the legislature, the Court of First Instance gave a word of caution that such jurisdiction, “having regard to the sovereignty of LegCo under the Basic Law, should only be exercised in a restrictive manner.”
”Could Beijing interpret the Basic Law in the case of the Youngspiration politicians?”
Possibly. Whether the Court of First Instance rules in favour of the government or not, the parties can appeal to the Court of Appeal or the Court of Final Appeal, Hong Kong’s top appellate court.
In the event that the Court of Final Appeal agrees to hear the appeal, the court may decide to refer the case to China’s top legislative body, the Standing Committee of the National People’s Congress (NPCSC). It has only done it once, in Democratic Republic of the Congo v. FG Hemisphere, a case in 2011 concerning the principles of state immunity.
Article 158 of the Basic Law confers the power of interpreting the territory’s mini-constitution on the NPCSC. In other words, the NPCSC’s interpretations of the Basic Law are final and legally enforceable.
Hong Kong’s judiciary has debated the scope of the NPCSC’s interpretative power. In Ng Ka Ling v. Director of Immigration in 1999, the Court of Final Appeal took a strong stance in defending judicial autonomy. But about a year later, in Lau Kong Yung v. Director of Immigration, the Court held that the NPCSC’s power is “plenary” in that it can interpret all of the provisions of the Basic Law at anytime.
”Is there any precedent for Beijing interpreting Hong Kong’s Basic Law?”
The NPCSC has interpreted the Basic Law on its own initiative once, in a case relating to the election method for choosing the chief executive in 2004.
The Hong Kong government has asked the NPCSC to interpret the Basic Law twice: first in Ng Ka Ling in 1999, when the government disagreed with the Court of Final Appeal’s decision entitling all Chinese citizens with Hong Kong parents to the right of abode. Secondly, in the case of former chief executive Donald Tsang, when he asked the NPCSC in 2005 to interpret the law related to the term of office of chief executives when replacing predecessors who vacated office before their terms expire.
The Court of Final Appeal referred a case on the principles of state immunity to the NPCSC in 2011.
Such interpretations are always controversial due to the public perception that Beijing is undermining Hong Kong’s judicial independence.
”What legal basis does the government have for this judicial review?”
The government has argued that the oaths of Youngspiration’s incoming lawmakers Yau Wai-ching and “Baggio” Leung Chung-hang contravened Article 104 of the Basic Law, and the Oaths and Declarations Ordinance (Cap. 11).
Article 104 of the city’s mini-constitution stipulates: “When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.”
Section 21 of the Oaths and Declarations Ordinance lays down the consequence of non-compliance. It says: “Any person who declines or neglects to take an oath duly requested which he is required to take by this Part, shall – (a) if he has already entered on his office, vacate it; and (b) if he has not entered on his office, be disqualified from entering on it.”
”Are there past cases of lawmakers being allowed to retake their oaths?”
In 2012, former lawmaker Raymond Wong Yuk-man replaced words such as “Republic” and “Special Administrative Region” with coughs in his first swearing-in attempt. Wong’s oath was only rejected after former Legislative Council president Jaspser Tsang was elected and revoked his oath.
In his second swearing-in, Wong read the full names of China and Hong Kong at an unusual pace, and shouted “Overthrow the Chinese Communist regime, down with CY Leung” immediately after his pledge.
Despite protests by pro-Beijing politicians, Tsang accepted Wong’s second oath.