These cases seem like they’ve been going on forever and there may be one more round to go. But the oath-taking saga is nearing its end with the appeal court ruling on February 15, against Leung Kwok-hung 【 梁國雄】, otherwise known simply as “Long Hair.” This is in recognition of his trademark long flowing tresses, which he maintains as a gesture of protest against Chinese dictatorship. He has said he will not, willingly, cut his hair until Beijing leaders acknowledge their mistake in using armed force to clear Tiananmen Square of protesters in 1989.

Leung was among the six newly-elected Legislative Councilors who were expelled from the legislature for improvising their oaths-of-office during the October 2016 swearing-in ceremony protest. The others have either appealed unsuccessfully or abandoned the attempt as a lost cause. Leung is the last holdout. Still unwilling to accept the disqualification verdict, he says he will seek legal aid and permission to make his case one last time, before Hong Kong’s Court of Final Appeal.

THE JUDICIARY’S LAMENT

Probably aggrieved Hong Kong democrats should rethink their practice of seeking relief in appeals and judicial reviews. These have been seen as a safeguard against perceived official injustice in the years since Hong Kong’s 1997 return to Chinese rule and Leung is famous for his pursuit of justice via this means.

An independent judiciary is probably the most prized of the “privileges” Hong Kong was allowed by Beijing under its post-1997 “one-country, two-systems” governing formula. Privileges is a new term being used by some, in deference to Beijing’s magnanimity, instead of the more common reference to rights and freedoms duly agreed upon before 1997.

But mediating between the two different … mainland and Hong Kong legal systems … as they must, Hong Kong’s courts are gaining a reputation they don’t like …  as accomplices, the willing enforcers of Beijing’s mandates.

The courts have also become part of the Hong Kong government’s strategy for “keeping up appearances,” that is, maintaining the appearance of judicial autonomy and independence via the liberal practice of allowing judicial reviews. These would help more in terms of public relations, but for the substance of the rulings handed down. As it is, the judiciary has felt the need to protest its innocence at every opportunity.

During the ceremonies marking the start of the 2019 Legal Year in January, both the Chief Justice and the Secretary for Justice went out of their way to acknowledge their critics; plead for the confidence of the community; and reaffirm the judiciary’s commitment to its core principles of independence, equality before the law, adherence thereto, and transparency. *

A few days later, as if in rebuttal, the pro-Beijing Bauhinia Foundation announced the results of a two-year, 2017-18, survey with some relevant findings on public perceptions. Conducted by the Chinese University, with 2,000 respondents, the survey found that the maintenance of law and order ranked highest in terms of public perceptions about actual performance. But abuse of government power, government transparency, and judicial autonomy were among the lowest rankings (South China Morning Post, Standard, hkej, all Jan. 18;  Harbour Times, Jan. 21).

RE-CAP: ON OATH-TAKING

The judiciary’s protestations of innocence might have resonated more effectively were it not for the experience of Leung Kwok-hung and the five other newly-elected legislators who were expelled from the Legislative Council (LegCo), after due process, over their oath-taking protest on Oct. 12, 2016. In fact, it has been the “due process” aspect itself that has probably done more than anything else to undermine public trust in the judiciary’s independence.

The story is by now well known. The September 2016 LegCo election played itself out as a kind of referendum on the Occupy-Umbrella Movement two years before. The spirit of that protest, and anger at Beijing’s backtracking on its promise to allow universal suffrage elections, lived on in the election campaigns of pro-democracy and pro-Beijing candidates alike.

Pro-Beijing candidates called on voters to reject those who had championed the disruptive 79-day street blockades two years before. But the voters chose otherwise. Democrats did well … better than expected. And those from the new post-Occupy generation vowed to carry the spirit of 2014 directly into the LegCo chamber itself.

They began on Day One, October 12, with an oath-taking protest, and got no further. Just as they initially seemed not to appreciate that Beijing probably never had any intention of allowing genuinely free Western-style universal suffrage elections here, so the newly-elected post-Occupy democrats did not anticipate the extent of Beijing’s determination to eradicate their political influence. Now they do, by reason of a few simple phrases written into a new document on oath-taking.

According to one official estimate, altogether 15 legislators-elect had violated the terms of proper oath-taking at the October 12 swearing-in ceremony (Nov. 14, 2016 post)The most aggressive were two members of the new post-Occupy group Youngspiration. Baggio Leung Chung-hang (New Territories East) and Yau Wai-ching (Kowloon West) used derisive language during the ceremony and displayed banners proclaiming, in English, “Hong Kong Is Not China.” Others interjected into their oaths demands for genuine universal suffrage, democratic self-determination, procedural justice, an end to tyranny, and so on … all in the spirit of 2014.

It took officials in Beijing less than a month to issue a formal Interpretation of Hong Kong’s post-colonial Basic Law constitution, Article 104, on oath-taking. The Interpretation was issued by the Standing Committee of the National People’s Congress (NPCSC) on November 7. **

The Interpretation seemed harmless enough … something like a back-to-basics reminder about proper parliamentary decorum. But in the hands of Beijing and Hong Kong officials, the November 7 Interpretation of HK Basic Law Article 104 has established the rationale for purging the entire generation of leading political talents that emerged from the 2014 protest movement.

The Interpretation said the obvious, namely, that all Hong Kong officials must pledge allegiance to the HK Special Administrative Region of the People’s Republic of China (PRC). But there was more: the content of the oath must also become the legal requirement and precondition for contesting elections and taking up public offices, a precondition that Hong Kong election officials have since taken to enforcing with ever increasing diligence. Additionally, according to the Interpretation, the oath must be taken, sincerely, solemnly, accurately, and completely. If there is some intentional lapse, the oath cannot be retaken.

And the oath is legally binding. Most dangerous for democrats because it is so difficult to disprove and is also now being so diligently enforced by election officers, “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 law” (Nov. 14, 2016, post).

Yau and Leung were immediately disqualified by court order, with the first judge adding a caveat that he would have ruled the same even without Beijing’s November 7 Interpretation. His verdict was then upheld through several rounds of appeal court rulings.

But the Administration of Chief Executive Leung Chun-ying was not content to let the matter rest there. In late 2016, he asked the court for a judicial review, selectively targeting four others among those who had embellished their original oaths in October. All had been allowed to retake the oath, in accordance with LegCo’s customary practice, and all had then taken their seats in the normal way.

The four: LAU Siu-lai (Kowloon West); Nathan LAW Kwun-chung (Hong Kong Island); Edward YIU Chung-yim, a Functional Constituency legislator; and most surprisingly, “Long Hair” LEUNG Kwok-hung (New Territories East), since he has been responsible for disrupting more solemn occasions than anyone could remember (Jan. 4, 2017 post)

The court responded in July, ruling that all four were at fault. They were immediately expelled from the chamber pending appeals. Their defence had included arguments against selective punishment and retroactive application, neither of which are principles inherent in the Hong Kong system’s common law tradition.

Their lawyers argued that the four had been allowed to re-take their oaths following LegCo’s customary practice, and could rightly expect to be reinstated, which they initially were. Beijing’s Interpretation was issued on November 7, after their October 12 protest, several others had also embellished their oaths, and so on. All to no avail. The presiding judge seemed to have some difficulty explaining himself, especially on the selectivity aspect, but he ruled against the four, and these four only. (July 20, 2017 post).

THE DISQUALIFICATION OF LEUNG KWOK-HUNG

Ultimately, only Long Hair carried the appeals process forward and rightly so since it was Leung who had set LegCo’s oath-taking precedent long before, in 2004. Leung was then a freshman legislator and wanted to make his dissident voice heard by writing his own oath. But unlike the Younspiration duo in 2016, he thought it best to seek advice first via his favorite judicial review option.

Judge Hartmann ruled that such improvisations were not allowed (case no.: HCAL 112/2004). So, Leung took the standard oath, shouted out some slogans afterward and was duly sworn in (July 5, 2018 post).   That set the precedent and allowing problematic oaths to be retaken also became standard practice, which was how the four were initially allowed to retake their oaths in 2016.

By 2019, however, the judges could not allow themselves to be impressed by such practices. The three-judge Court of Appeal panel strained instead to cite the reasons why none of those considerations signified in the wake of Beijing’s Basic Law Article 104 Interpretation. On February 15, they announced their ruling, which followed all those that had preceded them since 2014. Leung Kwok-hung’s legal team was led by barrister and veteran pro-democracy advocate Martin Lee Chu-ming (case no.: CACV 201/2017). ***

The court had earlier dismissed the written opinion of an outside legal authority in Beijing. The professor’s presence as an expert witness was requested by Leung’s team but disallowed by the court in a June 13, 2018 ruling (case no.: CACV 200/2017).

The final February 15, 2019 judgement began with a precise description of Leung’s oath-taking in the LegCo chamber on Oct. 12, 2016. This included the use of an open yellow umbrella, symbol of the Occupy-Umbrella Movement, as well as a short statement of support for the movement, and the oath itself, which Leung repeated fully but in a halting manner.

The presiding officer had nevertheless accepted Leung’s oath as valid. In challenging that decision, Chief Executive Leung Chun-ying and his Secretary for Justice argued that the oath had not been lawfully taken and the oath-taker should therefore be removed from office. The Appeal Court panel agreed.

Martin Lee’s Arguments:

Lee purported to show that the Interpretation of Article 104, issued by the National People’s Congress Standing Committee (NPCSC) in Beijing on November 7, 2016, is not valid or binding on Hong Kong courts and does not have retrospective effect.

This is because the Interpretation was in the nature of a supplement rather than a true Interpretation of the Basic Law. But the NPCSC is not anywhere authorized to supplement any provision of the Basic Law. And since it is in the nature of a supplement rather than an Interpretation, it should not according to common law practice have retrospective effect.

The November 7 Interpretation also usurped the functions of the Legislative Council. This was done, in effect, by supplementing Hong Kong’s own Oaths and Declarations Ordinance, which the NPCSC is not entitled to do by reason of Hong Kong Basic Law, Articles 2 and 17.

Alternatively, even if the Interpretation is assumed to be valid, binding, and with retrospective effect, the oath taken by Leung was still valid. This is because the Hong Kong’s Oaths and Declarations Ordinance was not amended in accordance with the specific new measures spelled out in Beijing’s Interpretation. Therefore, its requirements are not yet prescribed by Hong Kong law.

Therefore, Leung had a legitimate expectation, based on his own past practices and LegCo’s acceptance of them, that his improvisations were in accord with acceptable oath-taking behavior.  Also, in deference to the presiding officer on the spot at the time, this individual should be more qualified to rule immediately … on the nature of an oath in relation to practices past and present … than judges in a distant court ruling at a later date.

The Judges’ Response: 

To make a long story short, the Appeal Court panel gave no quarter. The three judges rejected all of Lee’s arguments. But this was done by relying heavily on the previous disqualification judgements that had been handed down since 2014 … the same judgments that have been responsible for much of the public’s growing cynicism.

A favourite line in these past appeal rulings has been that “unless we revisit” the previous judgements with their fundamental propositions of law, “it is apparent that many of the questions … as to the Interpretation have already been authoritatively determined by the Court.” The court complained that in challenging the validity, scope and effect of the Interpretation, Lee was essentially asking to “revisit” the fundamental propositions.

Which is of course just the point. The questions persist, along with the inertia of the court.  The questions have not been adequately answered in language the public can understand, nor has the reasoning that led to them. Otherwise, why appeal? And why does the court grant leave to proceed with so many appeals, knowing full well that the conclusions are not going to be any different than all those that have gone before … unless the basics can be “revisited”? Many concerned citizens have been hoping for just such a re-visitation. Thus, the circuitous judicial route to public mistrust remains unbroken.

The February 15, 2019 judgement on Leung Kwok-hung’s case was a masterpiece of such convoluted reasoning. It noted that when the Appeal Committee, as recently as September 1, 2017, saw no need to revisit the fundamental propositions, “such a course is not open to this Court.”

September 1, 2017 was the date that committee issued its reasoning on the disposition of disqualified legislator-elect Yau Wai-ching’s appeal. The full text of the Appeal Committee’s conclusions has apparently not been made public.

The February 15 judgement held that:  “By applying those undisputable fundamental propositions to the Interpretation, the Appeal Committee concluded that the Interpretation is binding on all the courts of Hong Kong, which must include this Court, as regards the true construction of Basic Law 104 on 12 October 2016.” The February 15 judgment concluded that the September 1, 2017 Appeal Committee decision in the Yau Wai-ching case was “a complete answer to Mr. Lee’s challenges against the validity, scope and effect of the Interpretation.”

The February 15 ruling went on to quote at length from the Appeal Committee’s conclusions on Yau Wai-ching’s disqualification. The committee held that the NPCSC’s power to interpret Hong Kong’s Basic Law derives from Article 67 of the Chinese Constitution and is provided for in Hong Kong’s Basic Law Article 158. The power is general and unqualified.

The Appeal Committee had explained that the power to interpret Hong Kong’s Basic Law under Chinese Mainland law is “one conducted under a different system of law to the common law system in force in the Hong Kong Special Administrative Region.” But the power includes legislative interpretation which can clarify as well as supplement laws. Nevertheless, an Interpretation of the Basic Law issued by the NPCSC is binding on the Hong Kong courts. “It declares what the law is and has always been since the coming into effect of the Basic Law on 1 July 1997.”

Lee had questioned the authority of the Chinese Constitution, Article 67, as the basis for the NPCSC’s unilateral interpretation of Hong Kong’s Basic Law. He argued that such application of the Chinese Constitution in Hong Kong must be subject to provisions of Hong Kong’s own Basic Law.

Not so, replied the panel on February 15, elaborating on the Appeal Committee’s fundamental propositions. In interpreting the Basic Law, the NPCSC functions under the Chinese Mainland civil law system, within which the NPCSC derives the power and authority to interpret all laws. This originates in Article 67 of the Chinese Mainland Constitution. That authority “is fully acknowledged and respected in Hong Kong. Indeed, such an interpretation by the NPCSC is binding in and part of the system in Hong Kong.”

Accordingly, the power deriving from Article 67 of the Chinese Constitution is the “primary source of the NPCSC’s power to interpret the Basic Law.“ This explains why the courts in HK “fully accept” that the NPCSC’s power to interpret the Basic Law under its Article 158 is “general and unqualified.” This also means that the “NPCSC can supplement a provision of the Basic Law when interpreting it,” which Hong Kong courts also accept.

THE RETROSPECTIVITY TRAP STILL UN-REVISITED

Evidently, one reason for allowing so many appeals is not in anticipation that any one might succeed in overturning the original disqualification verdict, but rather to provide additional opportunities to ensure that they are not.  Appeals also allow the court to reiterate the new rules under which Hong Kong’s legal system must operate, and to drive home the message that resistance is futile.

But message or no, one major question remains unanswered. From the start, the disqualified legislators and their lawyers have been challenging the retrospective disqualification for actions that were taken before the new version of Article 104 was issued (Sept. 6, 2017 post) Retrospective application is not a feature of Hong Kong’s common law tradition.

Yet in place of reasons, the only response has been that the Interpretation, once issued on November 7, 2016, instantly became “what the law has always been,” dating back to Day One when the Basic Law went into effect on July 1, 1997. The phrase has become a sardonic punch-line for the disqualification era.

How can it be, people have asked? And still they must, despite the February 15 ruling, which actually includes a section addressing Martin Lee’s retrospectivity challenge. But instead of a proper explanation, the February 15 ruling on Leung Kwok-hung’s disqualification becomes entangled in an argument with Lee over whether the Interpretation was more in the nature of a supplement than a true interpretation. Lee had argued that because the November 7 Interpretation was not a true interpretation, therefore, it should not be enforced retroactively.

On this point, the February 15 ruling evidently agreed. If it really was primarily a supplement, then it should not be retroactively enforced. But then the panel wanders off into an explanation about how initially, with the prior Interpretations, it had not yet been fully understood as to whether an Interpretation could both clarify and supplement.

And the panel also acknowledges that: “To date, there has been no direct judicial authority in Hong Kong based on expert evidence on PRC law, that both clarification and supplementation in an interpretation of the Basic Law should take effect on l July 1997.”

However, even though aware of the possibility that an Interpretation could both clarify and supplement, Hong Kong’s Court of Final Appeal “has consistently reaffirmed the retrospective effect of an interpretation of the Basic Law by the NPCSC … without drawing any distinction between clarification and supplementation.”

Despite the acknowledged uncertainty, no benefit of doubt was given. The original ruling became the precedent set in stone ever after. Therefore, six legislators-elect must be expelled from the Legislative Council, their election nullified, the voters disenfranchised.

Martin Lee had also mentioned a speech delivered in  England by a legal authority, in February last year. The speaker had suggested that the question of  retrospectivity in NPCSC Interpretations of  the Basic Law might be revisited by Hong Kong’s Court of Final Appeal. “With respect,” noted the panel haughtily,” it is no more than a personal extra-judicial opinion … It is not a binding authority.”

Nevertheless, there was just a hint of the strain the judges are labouring under as they find themselves straddling the two, Mainland civil law and Hong Kong common law, systems. The panel noted that in one of the earlier Interpretation cases, “the Court of Final Appeal relied on the common law declaratory theory of judicial decisions to hold that the interpretation issued by the NPCSC of the Basic Law in 1999 in that case took effect on the operation of the Basic Law, that is, 1 July 1997.”

This sentence contains the clue to Hong Kong’s retrospectivity trap. The panel might have gone on to add  …  just for the sake of curious voters who have been disenfranchised by the disqualifications  …   that it is evidently only because common law does follow the retrospectively principle in one relevant kind of case that this problem has occurred. Hong Kong courts have decided to adhere rigidly to the same common-law theory with all the NPCSC Interpretations of Hong Kong’s Basic Law.

The relevant cases are those that involve the interpretation of statutory law, or laws passed by legislatures.  Upon interpretation, such a law does become “what the law has always been”  … “even if it was 300 years ago,” say lawyers who remember their basic legal studies classes.  As to what should be done about all the cases that have been decided  during the intervening 300 years, they have no answer.

The National People’s Congress in Beijing is the Basic Law’s parent legislature.  Hong Kong courts are simply treating the National People’s Congress the same way that  courts in common-law jurisdictions treat their own separate elected law-making bodies.  The two kinds of legislature are, of course, structured very differently but those differences do not signify as far as Hong Kong’s courts are concerned. Nor does the separation-of-powers principle, which is also practiced in common-law jurisdictions.

In such jurisdictions, case law or judicial rulings in ordinary court cases are not retroactive, meaning they are not supposed to apply to actions committed before a judgement was handed down.

Adding to the contradictions, Mainland law itself is not retroactive unless a law expressly states it to be so and none of the Basic Law Interpretations have so stated. Nor apparently has anyone asked Beijing whether Article 67 of the Mainland Constitution on NPCSC interpretations carries any such implications. And evidently, no one has ever asked Beijing whether in the specific case of Hong Kong Basic Law Interpretations, the intention in Beijing was that they should be retroactively enforced.  And so, the muddle of public mistrust remains undiluted.

An extra-judicial opinion it might be, but this seems to be one question that deserves a re-visitation. Word has it in official circles that the Hong Kong government instructed the judiciary on what the Interpretations are supposed to mean. If true, Leung Kwok-hung’s appeal ruling suggests that the strain of the assignment is becoming more than the judges can convincingly manage.

* January 14, 2019 speeches: Chief Justice, Secretary for Justice:

https://www.info.gov.hk/gia/general/201901/14/P2019011400413.htm 
https://www.info.gov.hk/gia/general/201901/14/P2019011400738.htm

** NPCSC Interpretation, hk basic law, article 104. Nov. 7, 2017
https://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc25.pdf

*** https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=120078&QS=%2B&TP=JU

Posted by Suzanne Pepper on March 4, 2019
hkfocus2017@gmail.com

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