Still hope for Youngspiration duo, says Basic Law expert

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Local legislation may be needed to vacate the two localists even with a fresh interpretation for court ruling over the oath-taking saga.

It is too early to conclude that two localist lawmakers have lost their LegCo seats, or how they could lose them following an interpretation by China’s top legislature effectively forbidding them from retaking their oath of office.

The Standing Committee of the National People’s Congress (the Standing Committee) unanimously adopted an interpretation of Article 104 under the Basic Law on oath-taking yesterday (Monday Nov 7). The interpretation states that an oath would be invalidated if it was deliberately read out different from the statutory oath or in an insincere or frivolous manner, and that retaking the oath is forbidden. In other words, the NPCSC says one shot is all you get.

Danny Gittings, associate professor at HKU SPACE and author of the widely used textbook Introduction to the Hong Kong Basic Law, explained that the interpretation will likely be taken into account in a pending local court ruling against LegCo president Andrew Leung Kwan Yuen’s (梁君彥) decision to allow Sixtus ‘Baggio’ Leung Chung-hang (梁頌恆) and Yau Wai-ching (游蕙禎) to retake their oaths.

“I presume that the judge will re-open the court case in the light of the interpretation, or that the Hong Kong government will petition the judge to allow further arguments to be made,” Mr Gittings notes. “At the same time it will be very unfair not to allow lawyers for Leung and Yau to make counter-arguments.”

The Youngspiration duo has been asked by High Court judge Justice Thomas Au Hing-cheung (區慶祥) to submit any additional statement by Thursday noon.

Mr Gittings argues that it will require local legislation – likely in relation to the Oath and Declaration Ordinance – to implement the interpretation and vacate the Youngspiration duo’s seats, but such a move will likely be filibustered in the council by the pro-democracy camp. However existing LegCo rules of procedures also state that a member is subject to disqualification of membership if he or she, with no valid reason, is absent from meetings for three consecutive months without the consent of the President.

As Basic Law Committee member Rao Geping (饒戈平) admitted, there is no law barring disqualified legislators-elect to run in the by-elections that follow.

“Legally and politically this is going to be a very messy issue which will drag on,” Mr Gittings says, adding that the interpretation has also left the likes of Lau Siu-lai (劉小麗) and Edward Yiu Chung-yim (姚松炎) in a vulnerable position. “It’s quite clear as a matter of law that the Standing Committee’s interpretation is an explanation of the law so it’s an explanation of the law from the day it became a law which essentially means it’s retrospective. […] The LegCo President can revise his ruling [on Lau Siu-lai] yet again and there is also a pending judicial review against her. It’s hard to make a call even if it goes to the court however as there might be some other common law principles or legal principles about fairness that could be invoked.”

The interpretation also sparked fears over future legal actions against several lawmakers who have spoken out in support of self-determination, as the third provision under the interpretation states that those who make a “false oath” or engage themselves in acts that would considered a violation of the oath after taking it will bear legal responsibility. But Mr Gittings suggests that the provision is “too vague” and is “not enforceable by itself”.

“In accordance with law” open door to interference

On a more general note, Mr Gittings did express concern that the interpretation can open the door for more extensive interference into Hong Kong affairs in the future. “The words ‘in accordance with law’  appears in many parts of the Basic Law. So if it’s the role of the Standing Committee to define what ‘in accordance with law’ means, then they could potentially use that to interpret and to re-explain many provisions of the Basic Law, including, for instance, Article 26 on the right to vote and the right to stand for election in accordance with law,” he elaborates.

When asked to compare the current interpretation with previous occasions when the Standing Committee was called into action, Mr Gittings said it doesn’t go as far as the 2004 interpretation which changed the process of the political reform from three stages to five stages and in some senses was at odds with the original wording.

“There isn’t the same distinction between interpretation and amendment under the Chinese legal system. As a previous Standing Committee ruling has allowed an interpretation to include supplementing laws. This is partly because their laws tend to be so brief and I would say they have operated very much in a way that they would interpret laws in the mainland. This kind of interpretation and this level of detail would not be unusual for other Chinese national laws,” Mr Gittings asserts. “This is very rare in the common law system, which highlights again the difference in interpretation between the two systems.”