Counsel for Youngspiration’s Yau Wai-Ching and Baggio Leung Chung-hang have asked the court to disregard Beijing’s latest interpretation of Hong Kong’s mini-constitution, which was handed down Monday in a bid to clarify the laws on oath-taking.

The government, on the other hand, also told the court that its submission sufficiently justifies the disqualification of the embattled Youngspiration lawmakers “with or without” the interpretation by China’s top legislature, the Standing Committee of the National People’s Congress (NPCSC).

Baggio leung high court
Baggio Leung at the High Court. File photo: Stanley Leung/HKFP.

The oath quarrel is now before Hong Kong’s court after the government brought a judicial review challenge against the Youngspiration lawmakers and Legislative Council President Andrew Leung last week.

The Youngspiration duo and the Department of Justice submitted supplementary submissions to the court on Thursday, in light of Beijing’s interpretation of Article 104 of the Basic Law, a provision concerning oath-taking by public officers.

Contravention of the Basic Law

Counsel for Yau argued that Article 104 “requires no interpretation” as it merely “self-evidently creates an obligation” for public officers to take an oath, as well as requiring that the oath must be “in accordance with law.”

The term “law” refers to the Oaths and Declarations Ordinance in this case, they submitted. This is based on Article 18(1) of the Basic Law, which defines the “laws in force” in Hong Kong as those previously in force and enacted by the Legislative Council, except for the few Chinese national laws included in Annex III of the Basic Law.

Therefore, they said, the NPCSC interpretation effectively interpreted Hong Kong’s domestic law, thereby contravening Article 158 of the Basic Law, which gives Beijing the power to interpret only Hong Kong’s mini-constitution and no more.

Yau Wai-ching high court
Yau Wai-ching at the High Court. File photo: Stanley Leung/HKFP.

They further argued that the court can strike down any NPCSC acts if they are inconsistent with the Basic Law, citing the Court of Final Appeal in the 1999 case of Ng Ka Ling v. Director of Immigration.

In addition, the counsel said, it would be problematic if the NPCSC interpretation defines provisions in the Oaths and Declarations Ordinance differently than when applying the common law principles of interpretation that Hong Kong’s courts adopt.

Therefore, they concluded, the NPCSC interpretation may be regarded as an amendment to Hong Kong’s mini-constitution without going through the formal procedure set out in Article 159 of the Basic Law.

Overstepping legal limits

Counsel for Youngspiration’s Baggio Leung similarly argued that the interpretation should be nullified on the basis that the NPCSC had overstepped its constitutional boundaries by amending the Basic Law without complying with the formal procedure, Ming Pao reported.

The counsel said that Monday’s interpretation did not affect the principle of non-intervention, the idea that the court will not typically intervene in the legislature’s internal affairs. Alternatively, they argued, if an interpretation violates the principle, the court is entitled to depart from the ruling and leave the matters to the Legislative Council.

Hectar Pun, Counsel for Baggio Leung. File photo: Stanley Leung/HKFP


Counsel for the government countered that the principle of non-intervention is inapplicable because oath-taking by lawmakers is a “mandatory constitutional requirement” and Section 73 of the Legislative Council Ordinance confers on the court jurisdiction to intervene if a lawmaker is disqualified from acting.

Furthermore, they argued, oath-taking is not an internal affair of the legislature.

The counsel said the evidence “clearly confirms” that Yau and Leung had “declined or neglected” to take their oath, and they shall vacate their office immediately. The legislature’s president is not entitled to allow the duo to retake their oath, they added.

They also submitted that the NPCSC interpretation does not affect any of their arguments, as far as the “time and manner of oath-taking and the consequences of declining to take the oath are concerned.”

Decline to take an oath

Both Yau and Leung responded that the oath administrator – first the Legislative Council Secretary-General, and later LegCo President Andrew Leung – never made a decision as to whether the pair had “declined or neglected” to take their oaths.

Andrew Leung and Kenneth Chen Wei-on
Andrew Leung (left) and LegCo Secretary-General Kenneth Chen Wei-on (right). File photo: Stanley Leung/HKFP.

In fact, Andrew Leung evidently did not regard the duo to have “declined or neglected” to take their oath since he offered them a second chance to be sworn-in, counsel for the lawmakers said.

In addition, they argued, the court can only intervene in accordance with Section 73 of the Legislative Council Ordinance when a lawmaker has been disqualified within the meaning of that section. The government will need to prove that Yau and Leung have in fact been disqualified.

They added that the government’s position that the duo should “immediately” vacate their office would contravene Article 73, which entitles lawmakers to participate in the business of the legislature.

Following Monday’s interpretation, more judicial review challenges have been brought against pro-democracy lawmakers. The pro-Beijing camp has also urged the government to challenge the seats of pro-democracy lawmakers such as independent localist Lau Siu-lai.

Ellie Ng has written for Foreign Policy, the Daily Telegraph, Global Voices Online and others.