Hong Kong to take third lawmaker to court over oath taking, appeal of two disqualified lawmakers rejected

Ms Lau Siu Lai arriving at the High Court in Hong Kong, on Nov 18, 2016.
Ms Lau Siu Lai arriving at the High Court in Hong Kong, on Nov 18, 2016.PHOTO: EPA
Barred lawmakers Yau Wai Ching  and Sixtus Leung of Youngspiration party.
Barred lawmakers Yau Wai Ching and Sixtus Leung of Youngspiration party. ST PHOTO: JOYCE LIM

HONG KONG - Hong Kong's government has decided to take a third localist lawmaker to court over an oath-taking controversy that has seen two lawmakers disqualified from the legislature and their appeal rejected by a court on Wednesday (Nov 30).

Ms Lau Siu Lai, 40, took long pauses between words when she read her oath in October at the Legislative Council (Legco), and explained later on Facebook that she had meant to render it meaningless.

The proceedings to take her to court will commence later this week or next week, the Department of Justice said on Tuesday.

Ms Lau is part of a group of  13 pro-democracy lawmakers targeted in several judicial reviews over their oath-taking following the elections.

Two lawmakers - Mr Sixtus Leung Chung Hang, 30, and Ms Yau Wai Ching, 25 - were disqualified when the Hong Kong High Court ruled on Nov 15 that they had declined to take their swearing-in oaths and should thus be disqualified.

In their swearing-in oaths, Mr Leung and Ms Yau had used words insulting to China and displayed a banner that read "Hong Kong Is Not China".

The duo appealed against the ruling but the Court of Appeal on Wednesday rejected their case and also said they should bear all costs of the hearings.

The court held that the Basic Law is supreme and "when a constitutional requirement in the Basic Law is in issue, the common law doctrine of separation of powers and of non-intervention must give way to the court's constitutional duty to apply the Basic Law to adjudicate and rule on the matter". 

In their appeal heard over two days last week, Mr Leung and Ms Yau's lawyers had based their arguments on the separation of powers enshrined in the city's common law jurisdiction and called for non-intervention by the court. As a former British colony, Hong Kong had adopted common law traditions where legal principles laid down by judges are binding on future cases. 

The pair's lawyers also argued that it is for the oath administrator or Legco President to decide whether the pair had declined to take their oath, and neither of them have made that decision. Hence, it was premature for the court to intervene in a Legco matter. 

But in a summary of the judgement, the court said: "Compliance with the constitutional requirement under Article 104 of the Basic Law is not a matter of internal business or process of the Legco." It also said: "The views of the oath administrator may be of evidential value but are not binding on the court."

"There is no question of allowing them to retake the oath as a matter of law," it added.

Mr Leung's lawyer Jonathan Man told reporters outside the courtroom that the court will hear the appeal of the pair on Thursday if they decide to take the case to the Court of Final Appeal.  

Mr Leung and Ms Yau were absent in court on Wednesday morning, but they had said previously that they are prepared to take the issue to the Court of Final Appeal "at all costs". 

The High Court ruling on Nov 15 came after the National People's Congress in Beijing announced an interpretation of Hong Kong's Basic Law, saying that "those who declare Hong Kong independence not only have no right to run for the legislature and be a lawmaker, they should also be subject to legal responsibilities".

Beijing's interpretation has sparked fears of an erosion of the city's autonomy, and analysts have warned that more lawmakers deemed to have altered their oaths in the same ceremony could lose their seats.`