Hongkongers ought help two localist lawmakers fund an appeal against the High Court’s decision to effectively bar them from office on the grounds that the judge made two “extremely unacceptable” points affecting the public interest, barrister and former lawmaker Margaret Ng has said.

Last Tuesday, Mr Justice Thomas Au Hing-cheung ruled that Youngspiration’s Yau Wai-ching and Baggio Leung Chung-hang must be disqualified on the basis that they had “declined” to take their oaths owing to their controversial conduct. The pair are seeking donations of HK$5 million from the public to fund an appeal.

Yau Wai-ching
Yau Wai-ching outside the High Court. Photo: Cloud.

Ng wrote in Ming Pao on Monday that Mr Justice Au’s “weak reasoning” in his speedy ruling was “regrettable.” She said the public should donate to the Youngspiration duo – not to save their seats in the legislature, but to rectify the problematic implications of the ruling upon Hong Kong’s mini-constitution.

Overstep constitutional roles

The barrister said that an “extremely unacceptable” point is the court’s “unprecedented” use of judicial review as a speedy mechanism to disqualify lawmakers who were lawfully and democratically elected.

“So far, only election petitions have been used to challenge the legality of the election process of lawmakers or district councillors. Democratically elected lawmakers should at least be removed through the formal procedure of a democratic legislature,” Ng said.

Another issue is that the court used its power of judicial review to overturn Legislative Council President Andrew Leung’s decision, which relates the internal affairs of the legislature and was made in accordance with the Rules of Procedure, the barrister wrote.

Last month, Legislative Council President Andrew Leung allowed the Youngspiration pair to retake their oaths. The government subsequently filed a judicial review against Leung, requesting the court declare that Leung is not entitled to make the decision. Mr Justice Au accepted the government’s position.

Margaret Ng
Margaret Ng. Photo: Catherine Lai/HKFP.

“This appears to contradict the traditional attitude that the judiciary and the legislature should respect each other’s constitutional roles under the principle of separation of powers,” Ng said.

“Even if the court thinks that the president made a wrong decision based on a wrong legal principle, it should have returned the matter to the president and allowed him to make a decision afresh,” she said. “This would have been enough.”

Separation of powers refers to the division of government into distinct branches – the executive branch, legislature, and judiciary – to prevent any one branch from overstepping their constitutional roles and abusing concentrated power. It also helps prevent unelected judges from having too much power.

‘No longer our Hong Kong’

The barrister lamented the general public’s lack of interest in the lawsuit and Beijing’s interference in the oath controversy.

“Some think that the duo only have themselves to blame and deserve losing their seats. They focus on the outcome, not the procedure or principles. They don’t even seem to care what precedents and implications the case has brought,” Ng said.

Yau Wai-ching unfurls flag at LegCo. Photo: Stanley Leung/HKFP.

“This is exactly the point the central government capitalises on: it shifted the focus to how many people – and how strongly – want to remove these ‘troublemakers.’ Only a minority truly cares about how the outcome came about, and what adverse implications it might bring,” she said.

“This is how Beijing’s ruling – which in many ways has violated Hong Kong’s system – was able to invade our society, making Hong Kong no longer our Hong Kong.”

Ng said early this month that the court should reject Beijing’s controversial ruling on the basis that it has violated multiple provisions of Hong Kong’s mini-constitution.

Mr Justice Au said that even without Beijing’s ruling, he would have arrived at the same decision. However, he then said that he referred to Beijing’s decision – which he said is binding – in defining Article 104 of the Basic Law on oath-taking.

Legal experts and professionals have questioned the judge’s reasoning. Lawyer Kevin Yam told HKFP earlier: “It’d have been best if he’d stayed completely silent given that he’s already said he would’ve come to the same conclusion even without the interpretation. Those sort of comments are potentially unhelpful.”

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