Counsel for Youngspiration politician Baggio Leung Chung-hang argued in court on Thursday that Beijing’s recent ruling on the Basic Law is unconstitutional. But an appellate judge replied that it would be “arrogant and ignorant” for Hong Kong’s courts to say what Beijing can or cannot do under a different legal system.
Leung and his party colleague Yau Wai-ching are seeking to overturn the High Court’s decision last Tuesday to disqualify them from the legislature. They were disqualified on the grounds that they had refused to take their oaths owing to their controversial conduct during last month’s swearing-in session at the Legislative Council.
In response to the oath row, Beijing handed down a controversial interpretation on the Basic Law early this month. The ruling sought to regulate the conduct of oath-takers, but some legal experts said that the interpretation amounts to an amendment of the mini-constitution, which should follow a different procedure under Article 159 of the Basic law.
‘Arrogant and ignorant’
The High Court’s Chief Judge Andrew Cheung Kui-nung asked counsel for the Youngspiration duo to make submissions on Beijing’s ruling, saying that the issue would inevitably come up if the case reaches the Court of Final Appeal.
Senior Council Hectar Pun, representing Leung, argued that Beijing’s ruling is unconstitutional, as the expansive “interpretation” of Article 104 of the Basic Law amounts to changing the mini-constitution.
But Mr Justice Cheung said expert evidence is needed to prove that the impugned interpretation, made under the civil law system in China, is invalid.
He said it would be “arrogant and ignorant” on their part to decide what a civil law system can or cannot do. “We are under the One Country, Two Systems framework,” he said.
Pun responded: “The Court of Final Appeal has the jurisdiction to decide so – the Basic Law is Hong Kong law.”
But Mr Justice Jeremy Poon Shiu-chor responded: “It is a matter for civil law, not common law.”
As a former British colony, Hong Kong adopted the common law traditions. In the common law system, legal principles laid down by judges are binding on future cases. It stands in contrast with the civil law system, in which written constitutions and law codes carry the most weight. The Chinese legal system is a mixture of civil and socialist law.
The Court of Final Appeal ruled in 1999 that it has jurisdiction over Beijing’s interpretations and that it can strike down those that are inconsistent with the Basic Law.
It did not backtrack on its position in its “clarification” made a month later at the government’s request, saying that it “accepts that it cannot question [the] authority” of Beijing’s interpretations – but only those that are in accordance with the Basic Law.
The pair also argued that the court should refrain from interfering in the internal affairs of the legislature under the principle of non-intervention. However, the appellate judges said the Basic Law “trumps” common law, and therefore common law principles such as non-intervention do not apply.