Hong Kong Legislative Council oath taking controversy

Background

In the 2016 Legislative Council election held on 4 September 2016, six localist candidates with different agendas striving for the "self-determination" of Hong Kong were elected with 19 percent of the total votes, although the Electoral Affairs Commission (EAC) had made the unprecedented move to disqualify six other localist candidates from entering the election on the grounds of their support for Hong Kong independence, including Hong Kong Indigenous' Edward Leung who ran in the February's New Territories East by-election. Leung campaigned for Youngspiration's Sixtus Leung, 30, who stood in the same constituency as a "back up" plan. Leung was duly elected with 37,997 votes. His party colleague, Yau Wai-ching, 25, also won the last seat in Kowloon West with 20,643 votes, becoming the youngest female to be elected to the legislature.

Oaths invalidated

On 11 October 2016, a day before the inaugural session of the 6th Legislative Council, the government issued a statement warning the members-elect of the Legislative Council to swear to uphold the Basic Law and swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China as required by the Article 104 of the Basic Law.

On 12 October 2016, five localist and eight pan-democratic legislators used the oath-taking ceremony as a protest platform as they had in the previous sessions, by either shouting slogans or making extra statements before or after taking their oaths. However, the oaths of independent pan-democrat Yiu Chung-yim, Youngspiration’s Sixtus Leung and Yau Wai-ching were invalidated by LegCo secretary-general Kenneth Chen. Yiu added phrases such as "universal suffrage" immediately after his oath had his oath invalidated. Leung and Yau pledged allegiance to the "Hong Kong nation" before they took the oath while displaying a banner that read "Hong Kong is not China". They also mispronounced "People’s Republic of China" as "people’s re-fucking of Chee-na", a variation of the term Shina used by Japan for China deemed derogatory since the Second World War, three times. Both of their oaths were also declared invalid, which ruled that the trio could not vote in the subsequent election of the LegCo President, in which Andrew Leung of the Business and Professionals Alliance for Hong Kong (BPA) was controversially elected.

Condemnation

The Hong Kong SAR government denounced the duo for modifying their oaths and hurting the feelings of Chinese people, labeling their actions as "in violation of the dignity expected of LegCo members, or even spoke or acted in an offensive manner that harmed the feelings of our compatriots." Chief Executive Leung Chun-ying said many people were "angry and disappointed" over the oath-taking process. "This seriously affects the feelings between Hong Kong and mainland people," he added. China's state media Xinhua on 14 October quoted a "person-in-charge" of the Central People's Government’s Liaison Office in Hong Kong as expressing "strong anger and condemnation" over the two legislators' "despicable words and actions" which "has challenged the nation’s dignity and severely hurt the feelings of all Chinese people and overseas Chinese, including Hong Kong compatriots. We express strong anger and condemnation."

Sixtus Leung blamed his "Ap Lei Chau accent" as the reason to be misunderstood his pronunciation of "China" as "Chee-na" and the alleged profanity. He also argued that the word "Chee-na" is not offensive as "Dr Sun Yat-sen used the term 'Chee-na' when he was lobbying overseas." He also argued that the "Hong Kong is not China" slogan was a factual statement, "just like ‘apple is not orange'." His action and explanation was attacked in an article written for South China Morning Post as "kindergarten-like". "A group of Ap Lei Chau residents issued a joint statement rejecting his excuse, saying that [Sixtus] Leung Chung-hang’s terrible action has made those of us who were born and bred in Ap Lei Chau angry."

On the other hand, secretary-general Kenneth Chen's decision to invalidate the three legislators was questioned. "Secretary-general ruled the oaths as invalid without consulting legal advice," Lau Siu-lai, elected on her platform for self-determination, said. "It was an unjust decision and the subsequent meeting, in which the president was elected, was therefore unlawful." The pro-Beijing camp, on the other hand, sent a petition to the LegCo president asking him to also invalidate the oaths of Demosisto's Nathan Law and Lau Siu-lai. Law had raised his tone while swearing allegiance to China, sounding like he was asking a question, while Lau paused for six seconds in between every word in order to, she said, make the oath meaningless. Lau's oath was later invalidated by President Andrew Leung on 18 October along with pro-Beijing Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) legislator Wong Ting-kwong who missed the word "Hong Kong" when reading the oath after Leung was consulted with lawyers. The five legislators would be allowed two to retake their oaths on the next meeting on 19 October.

On 17 October, Sixtus Leung said he and Yau Wai-ching would consider compromising by retaking their oaths properly on the next meeting on 19 October to keep their seats. But both insisted they had done nothing wrong and brushed off mounting calls for an apology and their resignation, as well as threats of legal action against them. They claimed that the word "Chee-na" was referring to the regime but not to the people or culture.

Various pro-Beijing and Beijing-friendly organisations ran more than a dozen adverts in local newspapers, urging the duo to apologise or even resign, including one of the statements was issued by more than 200 historians and educators, including former chief curator of the Hong Kong History Museum Joseph Ting Sun-pao.

Government's legal action

On 18 October night just hours before the next LegCo meeting, the Hong Kong government took the unprecedented step of mounting a legal challenge to disqualify two Youngspiration legislators on grounds that their actions in the oath-taking process had contravened the Basic Law. Johnny Mok Shiu-luen, SC, representing Chief Executive Leung Chun-ying and Secretary for Justice Rimsky Yuen accused the duo of "sending a message to the world and also to the public that we can function as a member of LegCo without pledging allegiance to the HKSAR of the People’s Republic of China," Mok said. Jat Sew-tong, SC, acting for LegCo President Andrew Leung argued that the government’s move was a "serious deprivation of the constitutional rights" of the two legislators-elect. Justice Thomas Au Hing-cheung allowed the government's application for a judicial review, but denied the government an interim injunction to bar the pair from retaking their oaths on the next meeting. The hearing on the application was set for 3 November.

The pan-democracy camp accused Leung Chun-ying of "ruining the separation of powers" by inviting the courts to intervene in LegCo’s domestic affairs. "The Chief Executive pays no respect to the dignity and the independence of our legislature," Civic Party legislator for Legal constituency Dennis Kwok said. Rita Fan, Hong Kong delegate to the Standing Committee of the National People's Congress and Maria Tam, member of the Basic Law Committee under the Standing Committee slammed the pan-democrats back, denying the existence of the separation of powers in the Basic Law. Fan said the Basic Law "makes no mention" of separation of powers, while Tam said separation of powers was not how Hong Kong’s political structure was defined.

Pro-Beijing camp's walkout

Paul Tse, a pro-Beijing independent legislator had suggested staging a walkout to force adjournment to block the two Youngspiration legislators from retaking their oaths if they did not apologise. Four pro-Beijing lawmakers, including Holden Chow and Priscilla Leung, had disagreed, saying a forced adjournment would be damaging to LegCo. However after the court's ruling, the pro-Beijing camp decided to stage the walkout at the second meeting of the Legislative Council on 19 October after Wong Ting-kwong and Yiu Chung-yim retook their oaths. Sixtus Leung, Yau Wai-ching, as well as Lau Siu-lai who were supposed to retake the oath after Yiu were unable to do so.

New People's Party chairwoman Regina Ip denied that the pro-Beijing camp and the government were buying time, although some legislators admitted the administration’s judicial review had indeed prompted them to take the step. She was quoted as arguing such a move would cost them public support, "but why couldn’t we do something when even the government has made such a move? We do not want to appear feebler than the administration". LegCo President Andrew Leung said it was "unfortunate" his colleagues chose to walk out and that he had no choice but to adjourn the meeting.

After the walkout, as pro-Beijing lawmakers met the media, explaining the rationale behind their action, radical democrat legislator "Long Hair" Leung Kwok-hung of the League of Social Democrats (LSD) threw luncheon meat at them in protest. The canned food was a symbol against filibusters after former pro-Beijing legislator Wong Kwok-hing of the Hong Kong Federation of Trade Unions (FTU) measured the cost of marathon debates in terms of luncheon meat that could have been bought instead. The legislators pointed fingers and hurled luncheon meat at each other in front of the media cameras, putting what many have condemned as "kindergarten behaviour" on full public display, both for the local and international audiences.

LegCo’s democratic caucus convenor Democratic Party's James To said the pro-Beijing members "blatantly adjourned the meeting with the use of rules of procedures to block lawmakers from retaking their oaths". Democrat Lam Cheuk-ting, who had originally planned to petition at the meeting setting up a select committee to investigate HK$50 million Chief Executive Leung Chun-ying received from Australian engineering firm UGL Limited, accused the pro-Beijing camp of helping Chief Executive. Civic Party legislator Dennis Kwok said the walkout was a huge blow to the city’s rule of law, and disrespectful to the court system as the court had refused to grant an injunction preventing the Youngspiration pair from retaking their oaths.

After the pro-Beijing legislators walked out, localist Civic Passion’s Cheng Chung-tai was seen turning the flags of China and Hong Kong, which DAB’s Lau Kwok-fan had brought into the chamber, upside down. DAB’s Chan Hak-kan said Cheng’s act was against the law. Lau subsequently reported Cheng to the police and urged them to investigate and prosecute in accordance with the law.

LegCo President's on-hold decision

On 25 October, LegCo President Andrew Leung took a U-turn by deciding to delay the oath-taking of Leung and Yau on Wednesday's general meeting on 26 October, six hours after Chief Executive Leung Chun-ying warned of "far-reaching repercussions" on the relationship between Hong Kong and the mainland should the matter not be "rectified". Leung cited Article 72 of the Basic Law which allows the LegCo president to decide on the agenda, even though according to Rule 18 of LegCo’s rules of procedures, oath-taking is designated as the first priority of the order of LegCo’s business. "I note with grave concern the intention of the pro-establishment lawmakers to forestall the [oath-taking] at all costs," Andrew Leung explained. If he let the pair to retake the oaths, "the most probable outcome is that LegCo will come to a complete halt", as the pro-Beijing camp had threatened a second walkout to block the duo from retaking their the oaths. The Youngspiration pair slammed the president for what they called a "ridiculous" reversal of his earlier decision.

On 26 October, despite Andrew Leung's ban on the two Youngspiration to enter the chamber citing the Rule 1 of LegCo’s rules of procedures, the duo who was escorted by at least eight pan-democracy legislators and surrounded by reporters successfully entered the chamber. Andrew Leung immediately asked the Youngspiration duo to leave when he entered the chamber. After a short suspension of the meeting, Civic Passion's Cheng Chung-tai shouted at Andrew Leung, asking him to explain why he did not allow the duo to take their oath. Leung asked Cheng to leave the premises with Sixtus Leung and Yau Wai-ching. All three refused. After few minutes, Andrew Leung announced the meeting to be adjourned.

The pro-democracy camp call on Andrew Leung to resign after the adjournment. "Andrew Leung is unfit to perform his role," the camp’s convenor James To said. "The quorum was met, but he did not administer the oath [for the duo] in accordance with the law. In the face of the chaos, he did not know what to do but to adjourn the meeting. He has no basic competence to chair the meeting." The pro-Beijing camp blamed the adjournment on the pro-democrats. "People might have different interpretations of the rules of procedures, but they should respect the final ruling of the LegCo president," Regina Ip of the New People's Party said, referring to Andrew Leung’s earlier decision to ban the Youngspiration pair from entering the chamber. Felix Chung, leader of the Liberal Party said the city was in a "constitutional crisis" as the legislature could not function at all.

On 2 November, the fourth general meeting was adjourned again after the two Youngspiration legislators Yau Wai-ching and Sixtus Leung stormed into the main chamber and tried to take the oaths on themselves after another localist Lau Siu-lai, who was not under legal challenge, successfully retook her oath. President Andrew Leung relocated the meeting to another conference room where the duo attempted to enter. Six security guards were injured and police was called before the meeting was adjourned.

Interpretation of the Basic Law

Two days before the court hearing, Chief Executive Leung Chun-ying said he could not rule out asking Beijing to interpret the Basic Law on the oath-taking row on 1 November. On 3 November in the court hearing, Benjamin Yu SC, counsel for the Chief Executive and the Secretary for Justice, argued that the constitutional provision required legislators to duly take the oath as stipulated in the Article 104 of the Basic Law "is at stake" and therefore the court should intervene. Hectar Pun Hei SC for Sixtus Leung and Philip Dykes SC for Yau Wai-ching argued that the Basic Law provides for a separation of powers in which the oath-taking controversy should be resolved by the Legislative Council itself through a "political process" rather than a judicial process. Justice Thomas Au Hing-cheung said he would deliver his ruling "as soon as practicable" in the light of the possibility of the interpretation of the Basic Law by the National People's Congress Standing Committee (NPCSC).

On 4 November, Maria Tam, a member of the Basic Law Committee of the NPCSC, confirmed that the committee had received a letter from Zhang Dejiang, chairman of the National People’s Congress, who said Basic Law Article 104 would be interpreted and that committee members' views would be sought. A Hong Kong government spokesman also said it had been notified by the central government that an item relating to interpreting Article 104 of the Basic Law had been put on the agenda of the NPCSC. Civic Party's Dennis Kwok for the Legal constituency warned the interpretation would deal a huge blow to Hong Kong's rule of law. The Hong Kong Bar Association said it was "deeply concerned" about the reports of the interpretation of the Basic Law earlier, saying it would "deal a severe blow to the independence of the judiciary and the power of final adjudication of the Hong Kong court", if the NPCSC insisted on interpreting the Basic Law before the court's final ruling. "It will also seriously undermine the confidence of the Hong Kong people and the international community in the high degree of autonomy of [Hong Kong]," it said.

On 6 November, at least 8,000 people (police figures) and 13,000 according to the rally organisers protested against the interpretation of the Basic Law. Police used pepper spray to disperse protesters outside the Central Government’s Liaison Office in Sai Ying Pun. Subsequently, Demosisto, Student Fight for Democracy, the League of Social Democrats and the Labour Party announced the demonstration was over and urged protesters to depart to "avoid sacrifice" in face of "unfavourable situation". From 2am, a squad of about 40 officers was deployed with batons actively chased after protesters from Wilmer Street to Bonham Strand West to disperse the remaining protesters. Four people were arrested and two police officers injured during clash.

On 7 November, the NPCSC unanimously passed "The National People's Congress Standing Committee's interpretation of the Basic Law Article 104 of the Hong Kong Special Administrative Region". It made the points including that the person taking the oath should take it in a sincere and solemn manner with accurate, complete and solemn phrases such as "uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China" and "bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China" as stated in the statutory oath. If oath-taker refuses to take the oath, he or she cannot retake the oath and shall be disqualified from assuming public office. It also stated that the oath administrator has the duty to confirm if the oath-taking is carried out legally and complies with this interpretation and Hong Kong law. The spokesman of the Hong Kong and Macau Affairs Office stated that "[Beijing] will absolutely neither permit anyone advocating secession in Hong Kong nor allow any pro-independence activists to enter a government institution." Following Beijing’s decision, Chief Executive Leung Chun-ying said Hong Kong would enact Article 23, a controversial provision of the Basic Law relating to national security legislation. On 8 November, hundreds of lawyers joined a silent march against Beijing's interpretation of the Basic Law, claiming it harms judicial independence.

High Court ruling

On 15 November, Justice Thomas Au Hing-cheung, Justice of the High Court ruled that the two Youngspiration legislators should lose their seats as their conduct during the 12 October oath-taking meant they had declined to take their oaths. The judge also ruled that Legislative Council President Andrew Leung had no power to arrange a second oath-taking for the pair, adding that he had his conclusion independent of the NPCSC interpretation.

On 30 November, the Court of Appeal (Cheung CJHC, Lam VP, and Poon JA) unanimously rejected the appeals by the duo, referring to Beijing's interpretation as giving the "true meaning" to the part of the Basic Law. Chief Judge Andrew Cheung held that:

"The interpretation specifically sets out the consequence of an oath taker's declining to take the relevant oath - automatic disqualification, as part of the true meaning of Article 104 [...] The principle of nonintervention cannot prevent the court from adjudicating on the consequence of a failure to meet the constitutional requirement [...]There can be no dispute that both Leung and Yau have declined respectively to take the [Legislative Council] Oath. What has been done was done deliberately and intentionally [...] As a matter of law and fact, Leung and Yau have failed the constitutional requirement. They are caught by paragraph 2(3) of the Interpretation as well as section 21 of the Ordinance which gives effect to the constitutional requirement. Under the former, they were automatically disqualified forthwith from assuming their offices. Under the latter, they “shall ... vacate [their respective offices].” There is therefore no question of allowing them to retake the LegCo Oath."

The interpretation also affected several other judicial reviews subsequently filed by supporters of the pro-Beijing camp targeting about a dozen legislators who added words to the prescribed oath to make a political statement. Judicial reviews targeting pro-Beijing legislators were also filed, namely LegCo President Andrew Leung, Regina Ip and Lo Wai-kwok who once pledged allegiance to the United Kingdom and the Queen as a British national or colonial government official during British rule over Hong Kong.

Government's second legal action

On 2 December Chief Executive Leung Chun-ying and the Secretary for Justice Rimsky Yuen lodged another judicial review against four more pro-democracy legislators over their oaths, Lau Siu-lai, Nathan Law, Leung Kwok-hung and Yiu Chung-yim, who are already under legal challenge filed by pro-Beijing supporters.