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Thursday, November 3, 2016, 14:28

DOJ seeks disqualification of separatist lawmakers

By Willa Wu
DOJ seeks disqualification of separatist lawmakers
Citizens protest outside the High Court at Admiralty, Hong Kong, Nov 3, 2016, againist use of "insulting languages" by certain lawmakers-elect during oath taking. (Parker Zheng /China Daily)

HONG KONG – A long queue gathered Thursday morning as Hong Kong’s High Court began a judicial review in the case of two separatists elected to the SAR Legislative Council , who make a mockery of the official oath of office.

The Department of Justice contends that Yau Wai-Ching and Leung Chung-hang disqualified themselves by refusing to 'take the oath as required'

The pair also hurled insults at the nation and presented a banner declaring, “Hong Kong is not China.”

The court accepted the petition of the SAR’s Department of Justice (DOJ), which contends that the pair – Yau Wai-Ching and Leung Chung-hang – had disqualified themselves by refusing to “take the oath as required” under the Basic Law.

The Basic Law also stipulates that elected legislators who fail to adhere to the oath, as set out, must vacate their elective office.

The duo had applied for a second chance to take the oath of office, but refused to apologize for their conduct at the original swearing in ceremony on Oct 12.

Justice Thomas Au Hing-cheung is hearing the case. Representing the government are two senior counsels – Johnny Mok Shiu-luen SC and Benjamin Yu SC, often contracted by the government to handle judicial reviews.

They are joined by juniors Suen Jen-jin and former LegCo legal adviser Jimmy Ma. Mok is also a member of the Basic Law Committee.

Philip Dykes SC, a veteran in human rights lawyer, is appearing for Yau. Hectar Pun Hei SC is representing Leung.

Yu said the behavior of the duo, including the insertion of the words “Hong Kong nation” in the oath and using foul language in pronouncing the country’s name, demonstrated that the duo’s unwillingness to take the oath seriously and that they had used the occasion to promote Hong Kong independence.

Meanwhile, Yu also noted that the case had nothing to do with the internal matters at LegCo, including the ongoing filibusters.

He said Article 104 of the Basic Law requires that when assuming office, LegCo members swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.

"The principle of non-intervention cannot trump Article 104 and the Basic Law is supreme,” Yu said.

The Basic Law provides lawmakers immunity for what they say in the LegCo meetings from legal action. But Yu argued that the immunity covers only statements inside the Legislative Council. Oaths, however, are not statements, he said. As a result, he said, the two are liable for legal consequences.

The city government has not asked for an interpretation of the Basic Law from the Standing Committee of the People’s National Congress, but decided instead to proceed with a judicial review in Hong Kong's legal system, said Yu.

He said suggestions that the Hong Kong government has actively sought Beijing’s interpretation in an attempt to disqualify the duo were “totally unfounded”, and the government believed the issue can and should be handled within the city’s own judicial framework.

Another judicial review filed by the DOJ is against Legislative Council president Andrew Leung Kwan-yuen over his decision to allow the duo a second chance to be  sworn-in.

Andrew Leung is represented by Jat Sew-tong.

Spectators began queuing outside the High Court as early as 7 am, three hours before the case is opened. Public seating inside the courtroom is provided on a first-come-first-served basis. By about 9 am, seats for public audience and press were all occupied.
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