Kwok Cheuk-kin, a Cheung Chau resident nicknamed the “king of judicial review,” is to bring a legal challenge against Finance Secretary John Tsang after the official refused to answer questions from four pro-democracy lawmakers, HKFP has learned.

During Monday’s session at the legislature, Tsang refused to respond to lawmakers “Long Hair” Leung Kwok-hung, Nathan Law Kwun-chung, Edward Yiu Chung-yim and Lau Siu-lai, on the grounds that there are pending judicial review challenges from the government over their oath-taking ceremonies.

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The government subsequently backtracked on its decision and agreed to answered questions raised by all lawmakers. However, Kwok, who has launched more than 20 judicial reviews against the government over the years, told HKFP that he will be submitting a judicial review request on Tuesday notwithstanding the government’s reversal.

He said he will be asking the court to declare that Tsang’s action contravened Article 64 of the Basic Law. The provision stipulates that the Hong Kong government must be accountable to the Legislative Council and answer questions raised by lawmakers.

‘Playing with fire’

“The government is playing with fire by challenging the oaths of our democratically elected lawmakers,” said Kwok.

“I have already filed a judicial review against Chief Executive CY Leung and Regina Ip, and if the court grants leave to my requests, the public offices of Leung, Ip and Tsang will be temporarily suspended. Then the government will be in a big mess.”

Kwok, who used to work in the Department of Justice as a clerk, added: “How could the justice department make such an obvious mistake [regarding Tsang’s conduct]? How could they get the law wrong?”

Kwok Cheuk-kin
Kwok Cheuk-kin. File

‘Embarrassing position’

Barrister Chris Ng of the Progressive Lawyers Group told HKFP that Tsang’s refusal to answer lawmakers’ questions likely was based on the legal advice of the Department of Justice.

“Tsang is in an embarrassing position right now since he hasn’t decided whether to run for chief executive. At this stage, as a senior official he still has the responsibility to toe the government line. But once he decides to join the race and resign, he will no longer be part of the government and will probably give his true answer if asked again,” Ng said.

Last Friday, the government lodged a judicial review against the four pro-democracy lawmakers. The news came after the High Court disqualified Youngspiration’s politicians Yau Wai-ching and Baggio Leung Chung-hang from the legislature early November owing to their controversial oath-taking conduct.

Following the ousting of the Youngspiration duo, the pro-Beijing camp filed judicial review challenges against at least eight pro-democracy lawmakers. In response, Kwok did the same against the chief executive and six pro-Beijing lawmakers in an effort to block the authorities from “moving the goalposts.”

Ng questioned the reasoning of the court’s ruling: “Both the Court of First Instance and the Court of Appeal didn’t give any detailed reasoning for their intervention in the oath dispute as the final adjudicator,” he said.

yau wai ching baggio leung oath
Pro-independence activists Yau Wai-ching (L) and Baggio Leung meets journalists outside the High Court after the court disqualified them from taking office as lawmakers in Hong Kong, China November 15, 2016. Photo: Reuters/Bobby Yip.

“The court may not be wrong, but the administration doesn’t understand the importance of restraining their power. Now they are just riding on the judgment to make the most use of their power to disqualify lawmakers and further weaken the voice of the people.”

Ng said the lack of self-restraint by the government has created a “big problem” as Hong Kong now sees an “unprecedented” wave of judicial review against the legislature.

Checks and balances 

The turn of events could have an erosive effect on Hong Kong’s system based on the notion of the separation of powers, the barrister said. Separation of powers refers to the division of government into distinct branches – the executive, legislature, and judiciary – to prevent any one branch from overstepping their constitutional roles and abusing concentrated power.

“The goal of the separation of powers is to provide checks and balances. While the public usually focuses on judicial independence, we often neglect the relationship between the legislature and the administration,” Ng said.

“The role of democratically-elected lawmakers is to ensure that the government will not take advantage of the legislature to pass laws that are against the wishes of the people, such as Article 23 [security law]. If these lawmakers are ousted, the government can then do whatever it wants without any checks.”

nathan law leung kwok hung lau siu lai edward yiu
(L to R) Lau Siu-lai, Nathan Law, Leung Kwok-hung, and Edward Yiu. Photo: HKFP.

The pro-Beijing camp has urged the government to hold a by-election to replace the Youngspiration duo as soon as possible. Lawmaker Lau Siu-lai criticised the pro-Beijing camp and the government for “conspiring” to strip the pro-democracy camp of power.

“It is a critical moment for the legislature, because – of the 35 geographical constituency lawmakers – 19 were pro-democracy and 16 pro-Beijing originally. Now there are 17 pro-democracy lawmakers left. If they succeed in removing me, there will be 16 lawmakers in each camp,” Lau said.

She added that the consequence is that pro-democracy lawmakers will be unable to block major, controversial bills from being passed.

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Ellie Ng

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