Hong Kong’s oath-taking saga has been on-going since October 12, 2016. As a result of what happened that day, six-newly elected Legislative Councilors have been disqualified and expelled from the council. At least two others are seriously at risk. Seven others perhaps.

This was the officially orchestrated response after Beijing stepped into what was initially thought a local matter to be sorted out by the Hong Kong courts in accordance with local law. There is a law that covers this sort of thing and judicial independence is one of the many promises that were supposed to guarantee Hong Kong’s autonomy when it was returned to Chinese sovereignty in 1997.

The central government in Beijing nevertheless intervened and issued a supplementary ruling in the form of an interpretation of Hong Kong’s Basic Law constitution, Article 104, the article that concerns official oath-taking.

Hong Kong appeals court judges then responded not in defense of their autonomy but to opposite effect, and without dissenting opinion or argument. They ruled that under the Basic Law, Beijing’s interpretation must take precedence. And so this one did. The consequences are far-reaching. They also illustrate how easily the promise of autonomy can evaporate … and how every guarantee can be qualified at Beijing’s discretion.

Because Chinese mainland law is retroactive, which Hong Kong law is not (see update note below), the six legislators elected last year on September 4, have now lost their seats for what they did on October 12, following Beijing’s preemptive November 7 interpretation. This was announced before a Hong Kong court could issue its ruling on the same matter, which came a week later on November 15.

The net result so far: Hong Kong’s judicial independence has been compromised. So too has the separation of powers principle between the legislature and the executive that was already tenuous under official definitions. And the pro-democracy legislative caucus, elected with much celebration last fall, has lost its scant one-third veto-proof minority … which will allow the government to push through several measures it could not have done otherwise.

THE POST-OCCUPY ELECTION, September 4, 2016

This was the election that Beijing and Hong Kong loyalists hoped would teach Hong Kong’s democracy movement a lesson by punishing candidates who had championed the 2014 universal suffrage campaign. That campaign had ended in defeat but only after protesters camped out on the streets where they spent 79 days disrupting traffic on major city thoroughfares in an effort to put their message across to the wider public.

It had begun as the Occupy Central civil disobedience campaign and evolved into what became known as the Umbrella Revolution after one thing led to another and protesters used their umbrellas as shields against an unexpected barrage of police tear gas on September 28, 2014.  The message throughout was about aspirations for Western-style democracy, not just for itself but also as defense against encroaching mainland-style Chinese dictatorship.

Instead of defeating candidates who championed the cause of 2014, however, voters rewarded them by electing, against expectations, even some of the youngest and most radical representatives of the Occupy-Umbrella generation ( Sept. 20, 2016 post ) .

Turnout in that election, at 58% of registered voters, was the highest ever recorded in Hong Kong.  The popular vote broke 59.7% for democrats of all persuasions, and 40.3% for conservatives plus pro-Beijing loyalists (Apple Daily, Sept. 7).

Of the democrats’ share, the division between so-called moderates and new-style radicals was about 32% to 27% (South China Morning Post, Sept. 6).

Still, the real worry from Beijing’s perspective was that the entire pro-democracy camp had drifted in a more defiant direction following the new ideas that had emerged during the 79-day street occupation and the unsuccessful 2014-15 struggle for “genuine” universal suffrage elections. Unsuccessful because Beijing insisted on its definition of universal suffrage … meaning mainland-style, officially-vetted and nominated candidates.

The struggle, of course, did not begin in 2014. The campaign that year marked the culmination of a drive that began in the 1980s and continued on to become the foundation of Hong Kong’s present-day democracy movement.

By 2016, the most radical of these newly defiant ideas were flirting with independence and even violent resistance. A handful of such activists were barred from participating in the election.

All the others including the older traditional parties nevertheless added “self-determination” to their campaign manifestos. They were all focusing to varying degrees on defense of Hong Kong’s own political, social, and economic interests against Beijing’s growing mainland-style intrusions in all sectors.

Hence in Beijing’s eyes, self-determination is the same as independence and all such advocacies are seen as a threat to national political security. All are lumped together in Beijing’s current polemic against Hong Kong’s democracy movement.

The net result in terms of newly-elected members within Hong Kong’s bifurcated 70-seat Legislative Council was: 5-6 new-style “localists” among 29-30 pro-democracy legislators overall (depending on definitions).

Hong Kong’s legislature features a simulated bicameral arrangement with 35 directly-elected legislators; and 35 indirectly-elected by various occupational categories. These latter are designed to represent mostly conservative business and pro-Beijing loyalist interests. Pro-democracy partisans dominate among the popularly-elected legislators.

 THE SWEARING-IN CEREMONY, October 12

Two newly-elected legislators decided to rewrite the official oath and give their own version. They declared their loyalty to Hong Kong, not the People’s Republic and displayed a banner proclaiming that “Hong Kong is not China.” They also referred to China in vulgar and insulting terms.

These two legislators-elect were Occupy generation, representing a new party they had named Youngspiration 【青年新政】.  They are: Sixtus Baggio LEUNG Chung-hang 【梁頌恆】, elected from New Territories East, and Yau Wai-ching 【游蕙 禎】from Kowloon West.

Several other legislators took the standard oath but added extra words and flourishes of their own. Hong Kong’s older-generation greying radical “Long Hair“ LEUNG Kwok-hung 【梁國雄】, representing New Territories East, did what he had done at past swearing-in ceremonies: took the oath properly but then shouted out his slogans.

On this occasion he also raised a yellow umbrella while taking the oath, to signify where his current sympathies lay. But he had set the precedent for embellishments long before during his oath-taking debut, in 2004, when it was accepted by the Legislative Council’s presiding officers.

Back then, Leung himself had asked for a judicial review on the matter of improvised oath-taking. The answer from Judge Hartmann (case: HCAL 112/2004) guided Leung’s behavior thereafter. The two creative Youngspiration legislators-elect apparently did not know about the 2004 precedent: take the oath properly and add extras afterward.

Initially, the presiding officers on October 12, 2016 followed past practice. They let most of the extra flourishes pass but told the Youngspiration duo they must re-take their oaths. This they prepared to do at the next meeting a week later.

But then all hell broke loose, presumably with signals from Beijing although no proof of such has been revealed. The Hong Kong government intervened … in what should have been Legislative Council business … by asking the court for a judicial review on the behavior of the Youngspiration pair.

Conservatives and pro-Beijing loyalist councilors disappeared from the chamber pending the outcome of the judicial review. Hence a quorum could not be formed, the council could not convene, and the two could not re-take their oaths (Nov. 3, 2016 post).  At which point Beijing stepped in directly.

BEIJING’S INTERPRETATION, Nov. 7

 The interpretation of Basic Law, Article 104, was simple enough. It said only that Hong Kong officials must pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, The oath must be taken sincerely, solemnly, accurately, and completely … but specifically no second chances and no repeats.

Beyond that, the interpretation held that the oath is legally binding … evidently once taken and ever after. The oath-taker must “sincerely believe in and strictly abide by the relevant oath prescribed by law. An oath-taker who makes a false oath, or who, after taking the oath, engages in conduct in breach of the oath, shall bear legal responsibility in accordance with the law.”

The content of the oath must also become the legal requirement and precondition for standing for election and taking up public office.

The Hong Kong court issued its ruling on the Hong Kong government’s judicial review request a week later, on November 15 (case: HCAL 185/2016). Judge Thomas Au noted that he would have reached the same conclusion, based on Hong Kong law, without Beijing’s November 7 interpretation. He said the oath must be taken sincerely and solemnly, which the Younspiration pair, had not done (Nov. 14, 2016 post, update).

HONG KONG’S APPEAL COURT JUDGES ACQUIESCE

Tensions have grown in recent years following the frequent reminders from official and unofficial Beijing sources  that:  Hong Kong’s judiciary should support the executive; the separation-of-powers principle does not signify here; and local judges must do a better job of mastering Hong Kong’s Basic Law constitution. These genteel reminders gave way to angry blasts after Beijing’s November 7, 2016 interpretation of Article 104 (Nov. 14 post).

Presumably, Beijing is now well satisfied since Judge Au’s passing deference to Hong Kong law in his November 15, 2016 ruling marked the end of Hong Kong’s alleged judicial defiance.

That Hong Kong’s judiciary was finally taking its Basic Law lessons seriously became apparent during the appeals process for the first two disqualifications.

A Court of Appeal judgement on November 30 (case: CACV 224/2016) upheld the November 15 decision of Judge Au. At one point during oral arguments, a member of the three-judge panel had challenged a defense counsel argument calling it “arrogant and ignorant” (South China Morning Post, Nov. 25, 2016). But that was nothing compared to the appeal judges’ November 30 and January 16 explanations in defense of the two disqualifications.

The panel dismissed all the legal arguments and all the safeguards that defense lawyers had invoked from what they and everyone else had thought were the Basic Law’s guarantees. Hong Kong’s common law principles were rendered irrelevant by the simple fact of Beijing’s Basic Law interpretation … or so said the three-judge panel.

Its most clear-cut putdown of defense arguments came in the January 16, 2017 appeal court explanations (case: CACV 224/2016). *   They noted that the defense arguments were essentially based on Hong Kong’s common law principles to which the mainland system does not adhere. The appeal judges called this defense line of argument “wholly misplaced.”

When Beijing issues an interpretation meant to be implemented in Hong Kong, explained the judges, it must be implemented in Hong Kong according to the principles obtaining in the mainland system.

The interpretation must therefore be treated the same as if it had been written into the law originally. It is as if the November 7 interpretation had been the law since July 1, 1997. The interpretation “declared what the law has always been.”

Mainland civil law principles as applied by the Communist Party-led mainland government apply here as elsewhere in China if Beijing chooses to say so. This is regardless of the fact that Hong Kong courts otherwise apply common law principles when interpreting the Basic Law, said the judges.

In response to the contention that Hong Kong courts have the right and the duty to question any act by the National People’s Congress Standing Committee (NPCSC), which was the central authority that issued the interpretation, the Hong Kong appeal judges declared that “the courts in Hong Kong cannot question the authority of the National People’s Congress … to do any act which is in accordance with the provisions of the Basic Law.”

The three judges: Andrew Cheung, Johnson Lam, and Jeremy Poon offered no dissenting arguments or opinions.

DISQUALIFYING FOUR MORE

 With the judges falling so smartly into line, Chief Executive Leung Chun-ying proceeded, as soon as the first November 30 appeal court ruling was handed down, to initiate legal proceedings against four more newly-sworn in legislators (SCMP, Dec. 2).  The grounds were the same: improper conduct during the October 12 oath-taking ceremony (Jan. 4, 2017 post) .

All had initially passed muster according to the old rules and all had been at work since October carrying out their legislative duties. But if the mainland principle of retrospectivity is valid in Hong Kong, then why not give it a try and expel more of the Umbrella/Occupy generation, including both old and young.

Nor need the weeding out process stop there. Mainland authorities had identified a total of 15 newly-elected legislators who behaved improperly during the oath-taking ceremony on October 12 (Nov. 14, 2016 post). .The second batch:

LAU Siu-lai, 劉小麗】, teacher, street-market campaigner, and democracy activist from Kowloon West.

Nathan LAW Kwun-chung 【羅冠 聰】, student activist, Hong Kong’s youngest legislator, from Joshua Wong’s Demosisto party, representing Hong Kong Island.

Edward YIU Chung-yim 【姚松炎】, a Functional Constituency legislator, representing surveyors and architects.

“Long Hair“ LEUNG Kwok-hung 【梁國雄】, the old-time radical who has disrupted many a solemn ceremony in his day, representing New Territories East.

 

All four were duly dispatched in a 119-page ruling by Judge Thomas Au at the Court of First Instance on July 14. Oaths that had been taken and retaken and accepted by the presiding Legislative Council officers on October 12, were retroactively declared to be invalid. No second chances, according to Beijing’s interpretation of Basic Law Article 104 (case: HCAL 223/2016). **

Lawyers for the defense included:  founder of the Democratic Party, Martin Lee; Audrey Eu of the Civic Party; and University of Hong Kong law school professor Johannes Chan.

So politically correct was Judge Au’s unfamiliar mainland-style reasoning that one liberal law school academic, not usually so outspoken, dismissed it as  “ridiculous” (SCMP, July 15).  More like legalistic over-kill from a subordinate anxious to placate his angry sovreign..

Nevertheless the four were disqualified and barred from rejoining Legislative Council meetings as soon as the judgement was announced on July 14.

All cases can be appealed. Even the first two, Baggio Leung and Yau Wai-ching, have one final court date, on August 25.

But given the new rigid adherence to mainland legal thinking, it is hard to see how the results can be any different.  By now all possible arguments seem to have been exhausted, although the August 25 Court of Final Appeal hearing will at least allow judges other than the four involved so far …  Au, Cheung, Lam and Poon … to re-visit and reconsider and present some dissenting opinions if only for the record.

ONE-COUNTRY, TWO-SYSTEMS

So Beijing can begin to relax, at least with respect to this branch of government. The mainland-ization of Hong Kong’s independent judiciary seems well underway. The old British-style wigs they decided to retain after 1997, as a mark of their independence, seem even more incongruous now on the heads of judges who have mastered their mainland legal lessons so well.

As for the larger picture, Beijing is correct to proclaim that it is upholding its one-country, two-systems pledges.  If the defendants had attempted any such actions across the border, they would have long since been sentenced to the same fate as the late mainland dissident Liu Xiaobo … on grounds of challenging and therefore subverting state power.

Instead, Beijing is playing strictly by the book: interpreting Basic Law Article 104, which the Hong Kong government and judiciary can then enforce to the fullest extent possible. But all is proceeding according to the letter of the law..

Why Beijing has insisted on seeing to it that only people it can trust occupy the offices of Chief Executive and Justice Secretary is now clear … although why the judges are offering no dissenting minority opinions is not.

Meanwhile, the political objective of this elaborate Basic Law shadow play over oath-taking is to overturn the results of last year’s Legislative Council election and punish the new defiance that has become the hallmark of Hong Kong’s post- 2014 political environment … all neatly contained, for now, within the one-country, two-systems Basic Law construct..

 

* http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=107632

16 January 2017 …written judgement

 

**http://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=110351&QS=%28HCAL%7C224%2F2016%29&TP=JU

14 July 2017 … written judgement

 

UPDATE NOTE, 11/1/2017:  This statement is incorrect.  Mainland law is NOT necessarily retroactive (“The Retrospectivity Trap,” Sept. 6, 2017 post ).  Nor is common law necessarily NOT retroactive (Cullen in South China Morning Post, Nov. 1, 2017).

 

Posted by Suzanne Pepper on July 20, 2017

hkfocus 2017@gmail.com

 

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