The head of Hong Kong’s Legislative Council has said its members may not enjoy legal immunity in some cases when it comes to comments they make in the chamber about independence.

Andrew Leung. File Photo: LegCo.

In an interview with HK01 on Friday, LegCo president Andrew Leung was asked whether legislators may violate the Beijing-imposed national security law for actions inside the chamber, including discussions related to Hong Kong independence and filibustering.

“If a legislator was exercising his responsibility as a legislator, and debates in session, he would have protection [legal immunity],” Leung said. “The court would examine whether the legislator’s speech was made while he was exercising his responsibility as a legislator. If you weren’t exercising your responsibility, you’re not protected. Case law is very clear on this,” he added without elaborating.

Andrew Leung. File Photo: Kelly Ho/HKFP.

Article 77 of the Basic Law, Hong Kong’s mini-constitution, states that members of the legislative council shall be immune from legal action in respect of their statements during meetings of the council. Article 3 of the Legislative Council(Powers and Privileges) Ordinance also states that legislators shall not be liable in any court or place outside the council for speech and debate in the council or in proceedings before a committee.

However in 2016, a High Court judge rejected arguments by lawmakers-elect Sixtus “Baggio” Leung Chung-Hang and Yau Wai-Ching, who claimed they had immunity and should not be disqualified for the controversial way they took their oaths of office. The judge ruled that Article 77 only applies to remarks by a LegCo member “in the course of official debate on the floor of the LegCo when exercising his powers and discharging his functions as a LegCo member.”

Words uttered during an oath-taking did not constitute an exercise of their powers or functions as legislators, as they had not yet assumed office.

Hong Kong government’s front page advertisements in local newspapers. File Photo: GovHK.

Leung said that if legislators act in accordance with the Basic Law, which is required by oath, there “definitely will not be an issue.” However, he cautioned that “legislators need to look carefully at what their rights are, and what might constitute an offence under the four categories of penalties under the National Security Law.”

Beijing in June inserted the legislation into the Basic Law – bypassing the local legislature – following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorism, including interference with transport and other infrastructure.

The move – which gave police sweeping new powers – alarmed democrats, civil society groups and trade partners, as such laws have been used broadly to silence and punish dissidents in China.

Asked whether filibustering might violate Article 22 of the National Security Law, which bans serious interference, disruption or undermining of the government’s performance of its lawful functions, Leung said filibustering already violates the Legislative Council (Powers and Privileges) Ordinance.

“There’s already a law [against that] but it was not enforced. There is an additional article now, but whether someone would enforce it, we don’t know, it depends on how the law enforcement and judiciary would consider it.”

Selina Cheng

Selina Cheng is a Hong Kong journalist who previously worked with HK01, Quartz and AFP Beijing. She also covered the Umbrella Movement for AP and reported for a newspaper in France. Selina has studied investigative reporting at the Columbia Journalism School.