RULE BY DECREE?

“The whole world ought to be concerned”: Hong Kong lawyers react to Beijing’s “clarification” on oaths

After Beijing controversially stepped in to block two pro-independence lawmakers-elect from taking office in Hong Kong by offering its “interpretation” of the city’s own laws, Hong Kong lawyers are left wondering how to clean up the mess.

Yau Wai-ching and Baggio Leung, who represent the Youngspiration political party, were elected in legislative elections in September. Until now, the two haven’t been able to swear in to officially assume their posts as lawmakers. The first attempt was voided by the Legislative Council president after they displayed a “Hong Kong is not China” banner and mispronounced the word China to make it sound close to an old war-time insult instead of reading out the official oath.

The Hong Kong government first intervened through Hong Kong courts to stop the two from retaking their oaths a second time. While the court case is still pending in Hong Kong, yesterday Beijing’s highest legislative body, the National People’s Congress (NPC), intervened. It said that Yau and Leung would not be allowed to ever take their oaths again, not only because they broke the oath-taking rules as per Hong Kong’s own constitution the Basic Law, but because Hong Kong independence is a “cancer” that needs to be stamped out.

Beijing, and its defenders, have said that the intervention—which is constitutionally allowed by the Basic Law, but has been infrequently invoked since Hong Kong returned to Chinese rule in 1997—is supposed to help clarify the procedure to avoid a similar incident from happening again. Instead, it has sowed confusion and angered Hong Kong’s legal community, which sees it as a heavy-handed challenge to the city’s judicial independence.

For starters, by disqualifying two lawmakers who have already been elected, Beijing’s interpretation of the law means it is retroactive.

“I do not know how we are supposed to proceed,” Dennis Kwok, a lawyer and legislator said.

Many other legislators whose oaths have been approved are now in danger of being retroactively rejected, after Basic Law committee chair Li Fei said that advocating “self-determination” is the same as advocating full-out independence. That potentially puts a handful of other lawmakers’ situations into jeopardy, including 23-year-old Nathan Law, whose Demosisto political party promotes the idea that Hong Kong people should have a say in the city’s future relationship with China. Others may have their oaths revoked on procedural grounds—Leung Kwok-hung, a member of the League of Social Democrats, took the oath holding a yellow umbrella and shouted pro-democracy slogans.

Margaret Ng, a veteran Hong Kong lawyer, said, “Our law about how the oath needs to be taken is very clear. There was no ambiguity. Instead, what we have seen is that Beijing is doing anything they like to the Basic Law. The whole world ought to be concerned by this.”

The ambiguity of the NPC’s reinterpretation wording and the emphasis on taking the oath with “sincerity” are all part of the Chinese legal system vocabulary, and underscore the difference “between rule of law, and rule by decree,” said Alan Leong, a lawyer and former lawmaker on a local radio station today.

But what is really at stake for Beijing is something that trumps all legal considerations. By pronouncing so loudly the word “independence,” Yau and Leung are associated with what Beijing loathes the most: separatism. When that gets stoked, Beijing sees red, as the case of lawyer Pu Zhiqiang showed. One of China’s most respected lawyers, Pu, whose rights activism had been tolerated for years, was arrested only after openly criticizing the government’s policies in China’s Muslim-majority region of Xinjiang. To top it all off, Yau and Leung went to self-governed Taiwan, where they continued to discuss Hong Kong independence, knowing full well that Beijing considers Taiwan as part of China.

“They (Beijing) wanted to exclude those two young persons from the (Legislative) Council regardless of the cost,” said Fu Hualing, a law professor at the University of Hong Kong. “They took it as a personal insult. They did not care about the legal and political cost, because they just want to stop anybody who is pro-independence from joining the Legislative Council.”

Seizing on Beijing’s intense hatred of separatist talk, Rita Fan, Hong Kong’s only representative to the Standing Committee of the National People’s Congress, said she supported Beijing’s intervention because Yau and Leung’s separatist actions were “adding salt to the wounds of the Chinese people.”

Beijing’s intervention effectively disenfranchises tens of thousands of people who voted for opposition politicians across a spectrum ranging from pro-independence to mild democrat. Fu said that Beijing’s intervention amounts to basically future elections in Hong Kong being of “no use.”

Meanwhile, Hong Kong courts are still deliberating and are yet to issue a verdict on the government’s legal challenge against Yau and Leung—which now must unprecedentedly take Beijing’s interpretation into account.

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