Shortly after Nathan Law was disqualified by the High Court, along with three other lawmakers, for improper oath-taking, he wrote on social media that the “oath we are taking today has violated the interpretation of a law tomorrow.”
Law was referring to the retroactive effect of the disqualification, effective Oct. 12, 2016, based on the interpretation of Article 104 of Hong Kong’s Basic law by the National People’s Congress.
None of the four expected their behavior to result in their disqualification, which went against the common law’s predictability principle.
Albert Chen, a law professor in the University of Hong Kong and also a member of the Hong Kong Basic Law Committee, pointed out that the interpretation could be “unfair” to the disqualified lawmakers. He said the NPC’s interpretation may have contradicted the existing law’s predictability principle, and the retrospective effect may be unfair as no one could have predicted the outcome of such interpretation.
So far, six lawmakers have been ousted from the chamber. Yau Wai-ching and Leung Chung-hang were earlier removed just days after the NPC’s interpretation in November last year. The the other four — Law, Lau Siu-lai, Edward Yiu and Leung Kwok-hung — were brought before the court in December last year by the government.
Eight more lawmakers were also sued by members of the public due to their misbehaviour in the oath-taking ceremony. The worst case is that 14 lawmakers could lose their seats.
The disqualifications denied more than 185,000 voters, about 8 percent of ballots cast, a voice in the legislature and robbed the pro-democracy camp of its veto power over major legislation, one of the most powerful tools in a parliament stacked with pro-establishment legislators.
On Tuesday, the six former lawmakers held a press conference to discuss their next steps.
Yau Wai-ching said the nature of the cases against them is the same and should not be handled separately. It could be better for them to discuss the legal arguments for a possible appeal.
However, since the Court of First Instance followed the NPC’s interpretation to disqualify the four lawmakers, it could be quite impossible for them to successfully appeal the court judgment in the Court of Appeal.
Lawyer Thomas Tse did not encourage the six to file an appeal, saying the court is bound by the NPC’s decision without any room for change. He suggested they should save the money for the by-elections and hope that the public will send them back to Legco.
Tse warned them not to have any illusion about the Hong Kong legal system. “There is no such thing as fairness under the NPC’s interpretation. The court won’t be fair to you anymore.”
But some political commentators said the six should appeal given that the cases are a political issue rather than a purely legal matter.
Their argument is that Beijing’s intention is to undermine the Basic Law and put the Chinese constitution in its place.
That is a move to deny the city’s judicial independence. Beijing has the final say to interpret the laws to fit its political objectives.
The disqualification cases are clear examples of this.
The decision handed down by the judge also abandoned his independence and applied all the arguments in the NPC’s interpretation to support his judgment.
In fact, the court should raise the issue as to whether the NPC’s decision was retrospective or not. It was not fair to the lawmakers to be bound by a judgment that did not yet exist when they took their oaths.
Democrats now should show their solidarity against the Beijing authorities’ meddling in Hong Kong’s internal affairs. They should abandon their in-fighting and seek public support for their next move, either by participating in by-elections or filing an appeal.
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