The two Hong Kong lawmakers who caused controversy for insulting China in their swearing-in oaths have failed to keep their seats in the Legislative Council (Legco).
The Court of Appeal yesterday threw out a bid by Mr Sixtus Leung and Ms Yau Wai Ching of the Youngspiration party to overturn a High Court ruling on Nov 15 which disqualified them from the Legco.
The ruling could set a precedent for other cases, including that of lawmaker Lau Siu Lai, who took long pauses between words when she took her oath on Oct 12.
On Tuesday, the Department of Justice said the government would launch legal proceedings later this week or next against Ms Lau, 40, a university lecturer, who was sworn in on her second attempt in taking the oath on Oct 26.
Yesterday, in a summary of the judgment, the Court of Appeal ruled that Mr Leung and Ms Yau had "automatically vacated their offices", given that they had declined to take the Legco oath when asked to do so on Oct 12. But details of by-elections have yet to be announced pending a possible final appeal by the lawmakers.
In their appeal heard over two days last week, the duo's lawyers referred to the separation of powers enshrined in the city's common law jurisdiction and called for non-intervention by the court.
But yesterday, the court held that the Basic Law is supreme and above the common law. "When a constitutional requirement in the Basic Law is in issue, the common law doctrine of separation of powers and non-intervention must give way to the court's constitutional duty to apply the Basic Law," it said.
The lawyers had also argued that it was premature for the court to intervene when neither the oath administrator nor the Legco president had ruled that the duo had declined to take their oath.
But the Court of Appeal said: "The views of the oath administrator may be of evidential value but are not binding on the court."
The pair, who had earlier pledged to take the case to the Court of Final Appeal, told reporters yesterday they reserve the right to appeal, but needed more time to consider.
Mr Leung said his main concerns are over whether the move would lead to further interpretations of Hong Kong's law by Beijing, and a security deposit of at least HK$1 million (S$184,000) for the final appeal. They have raised slightly more than HK$30,000 through crowdfunding.
The duo used words insulting to China and displayed a banner that read "Hong Kong is not China" when taking their swearing-in oath.
They later sought to retake their oath, but were not allowed to do so after the city's Chief Executive Leung Chun Ying took the case to court. The unprecedented move led China's Parliament, the National People's Congress (NPC), to issue an interpretation of Article 104 of Hong Kong's Basic Law, or mini-Constitution, saying those who declare Hong Kong's independence have no right to be lawmakers.
On Tuesday, NPC chairman Zhang Dejiang warned that "Hong Kong independence would bring calamity to the nation and its people". He said Beijing's ruling showed its determination in safeguarding "one country, two systems" - a framework that promises a high level of autonomy for Hong Kong.
Political analyst Ivan Choy said the Hong Kong government will try to match Beijing's policy, but when more cases are being brought to court, people will "worry if this is a measure against Hong Kong independence", or a move "to suppress political opposition voices".
