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The Crisis of Judicial Independence in Hong Kong

Wilson Yuen, MA (University of Chicago, ’16), JD (The University of Hong Kong, ’12), BA (University of California, Los Angeles ’10)

In the 2016 Legislative Council (LegCo) General Election, Youngspiration, one of the political parties founded after the 2014 “umbrella revolution,” managed to send Mr. Sixtus Leung Chung Hang and Miss Yau Wai Ching to the LegCo through geographical constituencies New Territories East and Kowloon West respectively, mainly because of the endorsement from Edward Leung Tin-kei, spokesperson of Hong Kong Indigenous, who has been barred from running in the 2016 LegCo General Election on the grounds that he had advocated the separation of Hong Kong from China.[1]

All members of the LegCo have to duly take the Legislative Council Oath in order to officially begin their four-year terms of office. According to section 19 of the Oaths and Declarations Ordinance (Cap. 11):

A member of the Legislative Council shall, as soon as possible after the commencement of his term of office, take the Legislative Council Oath which-

(a) if taken at the first sitting of the session of the Legislative Council immediately after a general election of all members of the Council and before the election of the President of the Council, shall be administered by the Clerk to the Council;

(b) if taken at any other sitting of the Council, shall be administered by the President of the Council or any member acting in his place.

The Legislative Council Oath is specified in Schedule 2 to the Oaths and Declarations Ordinance (Cap. 11), as follows:

I, (name of person making the oath), swear [by Almighty God, for religious reasons] that, being a member of the Legislative Council of the Hong Kong Special Administrative Region of the People’s Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity.

The Court of First Instance (per Mr. Justice Hartmann) in the case of Leung Kwok Hung v Clerk to the Legislative Council [2004] HKCFI 883 took the view that “the form of the oath to be taken by a Legislative Concillor is fixed by statute and, until, or unless, that form is amended by the Legislative Council itself, it must be adhered to if a Legislative Councillor is to take the oath ‘in accordance with law.’”[2]

Any oath taken which has deviated from the prescribed wording of the Legislative Council Oath as specified in Schedule 2 to the Oaths and Declarations Ordinance (Cap. 11) would be inconsistent with Article 104 of the Basic Law and would therefore be unlawful and of no effect.[3]

On October 12, 2016 (the oath-taking day at the first session of the Sixth Legislative Council), Sixtus Leung Chung Hang, while wearing a banner that read “Hong Kong is not China” and keeping the fingers of his right hand firmly crossed, swore allegiance to “the Hong Kong Special Administrative Region of the People’s Republic of Shina.” Shina is an archaic Japanese name for derogating China during the Sino-Japanese Wars.[4]

Meanwhile, Yau Wai Ching pledged her allegiance to the “Hong Kong Special Administrative Region of the People’s Refucking of Shina” in her oath taking and simultaneously unfurled a flag that read “Hong Kong is not China.”[5]

As a result, Mr. Kenneth Chen, Secretary General of the Legislative Council Secretariat, declared that their oaths were invalid and he did not have the authority to admit both Mr. Leung and Ms. Yau as members of the Legislative Council.

On October 18, 2016, Mr. Andrew Leung Kwan-yuen, the President of the Legislative Council, decided to permit both Sixtus Leung and Ms. Yau to retake the oath again before him on October 19, 2016 in accordance with section 19 of the Oaths and Declarations Ordinance (Cap. 11).

In an effort to restrain both Sixtus Leung and Ms. Yau from being sworn in and overrule Mr. Andrew Leung’s decision, Mr. CY Leung, the Chief Executive of the Hong Kong Special Administrative Region (HKSAR), and Mr. Rimsky Yuen Kwok-keung, the Secretary for Justice, launched an unprecedented application for (1) an interim injunction restraining the President of LegCo to permit both Sixtus Leung and Ms. Yau to retake the oath and (2) a judicial review on whether the President of LegCo has the power to allow members of LegCo, whose oath or affirmation has been deviated from the prescribed wordings of the Oaths and Declarations Ordinance (Cap. 11) at the first meeting of the term, to retake their oaths as lawmakers.[6]

After the urgent hearing held in the evening on October 18, 2016, Justice Thomas Au of the Court of First Instance, on one hand, took the view that the applicants had a strong arguable case and hence a serious issue to be tried on a proper construction of section 21 of the Oaths and Declaration Ordinance (Cap. 11),[7] read in the context of Article 104 of the Basic Law.[8] Under such circumstances, he decided to grant leave to the applicants to apply for judicial review.

On the other hand, Justice Au, in light of the wider perspective of public interest, refused to grant interim injunction sought by the applicants, on the grounds that (1) there would be significant prejudice caused to the public if both Sixtus Leung and Ms. Yau are to be deprived of representing their respective electorate in the LegCo during the interim period and (2) the undesirable and adverse effects caused by the said prejudice cannot and will not be compensated.[9]

This landmark and unprecedented judicial review launched by the Executive branch of Hong Kong government can be perceived as a deliberate attempt to demolish the separation of powers that exists in Hong Kong.[10] While die-hard supporter of pro-Beijing camp, Mrs. Rita Fan, member of the Standing Committee of the National People’s Congress (NPCSC), said that Hong Kong did not enjoy separation of powers as it was not written in the Basic Law,[11] she has apparently overlooked the precedents set by previous court rulings, inter alia, where the Hong Kong Court of Final Appeal in the case of Lau Cheong v HKSAR [2002] held that “the Basic Law enshrines the principle that there must be a separation of powers as between the executive, the legislature and the judiciary.”[12]

Moreover, the Court of First Instance in the decision of Leung Kwok Hung v The President of the Legislative Council of the HKSAR and Another [2007] held that “the Basic Law enshrines the separation of powers. A reading of the Law makes it evident that the executive, the administration and the legislature are each to perform their constitutionally designated roles in a co-ordinated and co-operative manner for the good governance of Hong Kong.”[13]

Under the conventional concept of separation of powers, it is rare for the Chief Executive of the HKSAR, as the head of executive branch of the government, to challenge the ruling of the legislature’s President. Such unprecedented judicial review can be considered as an effort to undermine the authority and the legitimacy of the Legislative Council, given that oath taking by legislative councillors entirely falls upon the “sphere of influence” of the legislature, either by the Secretary General of the LegCo Secretariat or the President of the LegCo.

Meanwhile, Justice Au’s decision to grant leave to the executive branch of government to apply for judicial review seemed to deviate from the doctrine of due deference, which refers to the principle that the courts, based on the principle of separation of powers, attribute an appropriate degree of weight, in terms of democratic legitimacy and institutional competence, to the decisions made by the elected branches when adjudicating judicial review proceedings involving conflicts between executive and legislative branches. In my view, oath taking by members of the LegCo is entirely an internal matter of the LegCo.

That being said, Justice Au of the Court of First Instance ordered that the substantive hearing of the said judicial review would be heard on 3 November 2016 with 4th reserved. Justice Au’s ruling dated 18 October 2016 has to be duly respected.

On November 1, 2016, Mr. CY Leung, Chief Executive of the HKSAR, claimed that he may ask Beijing to interpret the Basic Law, Hong Kong’s mini-constitution, in order to prevent the duo of Sixtus Leung and Ms. Yau from taking the oath again.[14] His remarks were materially inappropriate, procedurally improper and wholly unfounded, since he has attempted to threaten the judge, and interfere with the court before the substantive hearing of the judicial review.[15]

Nevertheless, multiple reports subsequently emerged in the evening on November 1, 2016 that the Standing Committee of the National People’s Congress (NPCSC) may interpret Articles 26 and 104 of the Basic Law with respect to the recent saga of oath taking by Sixtus Leung and Ms. Yau.[16]

Since the transfer of sovereignty over Hong Kong from the United Kingdom to China on 1 July 1997, the Basic Law has been interpreted four times. The well-known right of abode cases[17] triggered the debut of interpretation of the Basic Law by the NPCSC. Provided that the Court’s judgment was not in favor of the HKSAR government, the then Chief Executive of the HKSAR, Mr. Tung Chee-hwa, sought an interpretation of Articles 22 and 24 of the Basic Law from the NPCSC, which overruled the final judgment made by the Hong Kong Court of Final Appeal.

The second interpretation of the Basic Law was initiated by the NPCSC itself on 6 April 2004, aimed at rejecting the election of the Chief Executive and the entire LegCo by universal suffrage to be held in 2007 and 2008 respectively.[18]

The third interpretation of the Basic Law was sought by the then Acting Chief Executive, Mr. Donald Tsang in 2005, concerning the term of office of the new Chief Executive to be elected on 10 July 2005, notwithstanding there were two pending applications for leave to apply for judicial review at the Court of First Instance of the High Court.[19]

Only the fourth interpretation of the Basic Law was consistent with the procedures enshrined in Article 158(3) of the Basic Law, whereby the Court of Final Appeal, before making their final judgments, sought an interpretation of Articles 13(1) and 19 of the Basic Law from the NPCSC, concerning foreign affairs which were the responsibility of the Central People’s Government and affairs fell within the relationship between the Central Authorities and the HKSAR in the case of Democratic Republic of the Congo & Others v FG Hemisphere Associates LLC (2011).[20]

Although Article 158(1) states that “the power of interpretation of this [Basic] Law shall be vested in the Standing Committee of the National People’s Congress,” Article 158(2) states that “the NPCSC shall authority the courts of the HKSAR to interpret on their own, in adjudicating cases, the provisions of this [Basic] Law which are within the limits of the autonomy of the Region.”

In the case of Vallejos & Domingo v Commissioner of Registration (2013), the Court of Final Appeal has declined the request by the HKSAR Government to seek an interpretation of the Basic Law from the NPCSC on the basis that common law approach of interpretation of the Basic Law was sufficient to adjudicate the right of abode of foreign domestic helpers in Hong Kong, and such matter falls within the limits of the autonomy of the HKSAR under Article 158(2) of the Basic Law.[21]

If the media reports are true that the NPCSC will interpret the Basic Law in response to the oath-taking saga by Mr. Sixtus Leung and Ms. Yau prior to the judgment made by the Court of First Instance, it will not only undermine the judicial independence of Hong Kong, but also diminish the power of final adjudication of the Hong Kong courts. More importantly, it will bring an additional uncompensated adverse impact to the rule of law in Hong Kong, which has been in jeopardy since the handover.

Although the Hong Kong Bar Association has implored the NPCSC to exercise the highest degree of restraint in handling the oath-taking saga,[22] I am of the view that the NPCSC will insist on interpreting the Basic Law, notwithstanding its material irregularities and procedural impropriety, for the sake of nipping any kinds of Hong Kong independence movement in the bud.

As of today, there are two pending election petitions launched by Andy Chan Ho-tin (the convener of Hong Kong National Party) and Edward Leung Tin-kei (spokesperson of Hong Kong Indigenous) challenging the constitutionality of the New Territories (West) and New Territories (East) geographical constituency election on the basis of multiple material irregularities. Both candidates have been barred from running in the 2016 LegCo General Election for their pro-independence standpoint.

It is anticipated that the NPCSC, by interpreting the relevant provisions of the Basic Law, wishes to affect the courts’ decisions in those pending election petitions, for ensuring that both Andy Chan and Edward Leung cannot and will not be able to run in any elections in Hong Kong.

If the NPCSC insists on interpreting the Basic Law as a response to the oath-taking saga and an attempt to nip any kinds of Hong Kong independence movement in the bud, it will run the risk of submerging the Hong Kong judiciary to a mouthpiece of both the Beijing authority and the executive branch of Hong Kong government, which may perhaps echo the words of Xi Jin-ping, who once urged that “there should be sincere cooperation within the governance team of the HKSAR and there should be mutual understanding and support amongst the executive, the legislature and the judiciary of the HKSAR.”[23]

Suggested Citation: Wilson Yuen, The Crisis of Judicial Independence in Hong Kong, Int’l J. Const. L. Blog, Nov. 4, 2016, at: http://www.iconnectblog.com/2016/11/the-crisis-of-judicial-independence-in-hong-kong


[1] Kris Cheng, “Edward Leung of Hong Kong Indigenous barred from LegCo election,” Hong Kong Free Press, August 2, 2016, accessed October 2, 2016, https://www.hongkongfp.com/2016/08/02/breaking-edward-leung-hong-kong-indigenous-barred-legco-election/.

[2] Leung Kwok Hung v Clerk to the Legislative Council [2004] HKCFI 883; HCAL 112/2004 (6 October 2004), at para. 27. Available at http://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfi/2004/883.html.

[3] Legislative Council, A Companion to the history, rules and practices of the Legislative Council of the Hong Kong Special Administrative Region, LC Paper No. AS 143/13-14 (Hong Kong: The Legislative Council Commission, 2014), at para. 3.27. Available at http://www.legco.gov.hk/yr13-14/english/counmtg/papers/cm0618as-143-e.pdf.

[4] Tom Phillips, “Rebel Hong Kong politicians defy China at chaotic searing-in ceremony,” The Guardian, October 12, 2016, accessed October 13, 2016, https://www.theguardian.com/world/2016/oct/12/hong-kong-pro-democracy-oath-snub-china.

[5] Ibid. See also Kris Cheng, “LegCo Sec. rejects oaths of 3 incoming lawmakers as one refers to ‘People’s Ref**king of Chee-na’,” Hong Kong Free Press, October 12, 2016, accessed October 13, 2016, https://www.hongkongfp.com/2016/10/12/legco-sec-rejects-oaths-of-3-incoming-lawmakers-as-one-refers-to-peoples-refking-of-chee-na/.

[6] Chief Executive of the Hong Kong Special Administrative Region and The Secretary for Justice v The President of the Legislative Council, Sixtus Leung Chung Hang and Yau Wai Ching, HCAL 185/2016 (18 October 2016); Chief Executive of the Hong Kong Special Administrative Region and The Secretary for Justice v Yau Wai Ching, Sixtus Leung Chung Hang and The President of the Legislative Council, HCMP 2819/2016 (18 October 2016), paras. 2 & 4. Available at http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=106500&currpage=T.

[7] Section 21 of the Oaths and Declarations Ordinance (Cap. 11) states that, “Any person who declines or neglects to take an oath duly requested which he is required to take by this Part, shall – (a) if he has already entered on his office, vacate it, and (b) if he has not entered on his office, be disqualified from entering on it.”

[8] See n 6 above, at para. 4.

[9] See n 6 above, at paras. 8-12.

[10] Cal Wong, “Hong Kong’s Executive and Legislative Branches Clash,” The Diplomat, October 19, 2016, accessed October 20, 2016, http://thediplomat.com/2016/10/hong-kongs-executive-and-legislative-branches-clash/.

[11] Ellie Ng, “Hong Kong does not have separation of powers, only judicial independence, says pro-Beijing heavyweight,” Hong Kong Free Press, October 20, 2016, accessed October 23, 2016, https://www.hongkongfp.com/2016/10/20/hong-kong-not-separation-powers-judicial-independence-says-pro-beijing-heavyweight/.

[12] Lau Cheong & Another v HKSAR [2002] 2 HKLRD 612 at para. 101.

[13] Leung Kwok Hung v The President of the Legislative Council of the HKSAR and Another [2007[ 1 HKLRD 387, at para. 66.

[14] Michael Perry and Alison Williams, “Hong Kong leader raises prospect of controversial legal request to Beijing,” Reuters, November 1, 2016, accessed November 2, 2016, http://www.reuters.com/article/us-hongkong-china-idUSKBN12W325. See also Lam Kwok-Iap (translated and written in English by Luisetta Mudie), “Beijing Could Weigh In on Hong Kong Pro-Independence Lawmakers’ Oaths Row,” Radio Free Asia, November 1, 2016, accessed November 2, 2016, http://www.rfa.org/english/news/china/oaths-11012016112721.html.

[15] “CY accused of trying to interfere with the court,” RTHK English News, November 1, 2016, accesed November 2, 2016, http://news.rthk.hk/rthk/en/component/k2/1294059-20161101.htm.

[16] Kris Cheng, “Reports emerge that Beijing may issue interpretation of Hong Kong constitution over oath-taking,” Hong Kong Free Press, November 1, 2016, accessed November 2, 2016, https://www.hongkongfp.com/2016/11/01/multiple-news-sites-cite-sources-saying-beijing-will-issue-interpretation-of-basic-law-on-oath-taking/.

[17] See Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4; Chan Kam Nga & Others v Director of Immigration (1999) 2 HKCFAR 82.

[18] Human Rights Watch, “Hong Kong: Interpretation of Basic Law Serious Setback for Electoral Reform,” April 7, 2004, accessed November 1, 2016, https://www.hrw.org/news/2004/04/07/hong-kong-interpretation-basic-law-serious-setback-electoral-reform.

[19] See Hong Kong Bar Association, “Statement of the Hong Kong Bar Association on The Acting Chief Executive’s Request for NPCSC Interpretation of Article 53 of the Basic Law of the HKSAR,” April 14, 2005, accessed November 1, 2016, http://www.hkba.org/sites/default/files/re_New_CE_20050414_E.pdf.

[20] Democratic Republic of the Congo & Others v FG Hemisphere Associates LLC, FACV No 5 of 2010 (8 June 2011), reported at (2011) 14 HKCFAR 95 & (8 September 2011), reported at (2011) 14 HKCFAR 395.

[21] Vallejos Evangeline Banao, also known as Vallejos Evangeline B. v. Commissioner of Registration and Another [2013] 2 HKLRD 533, at paras. 92-107.

[22] Hong Kong Bar Association, “The Hong Kong Bar Association’s Statement Concerning the Possibility of the NPCSC to Interpret the Basic Law Conerning the Incident of Oath Taking by Legislative Councillors,” November 2, 2016, accessed November 2, 2016, http://www.hkba.org/sites/default/files/20161102%20-%20Statement%20re%20NPCSC%20proposed%20interpretation%20of%20BL%20on%20legislaiton..%20%28E%29.pdf.

[23] See Hong Kong Bar Association, “Press Statement Regarding Judicial Independence,” July 9, 2008, accessed October 10, 2016, http://www.hkba.org/sites/default/files/20080709.pdf.

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Published on November 4, 2016
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