Legal underpinnings of Beijing’s resolution on unseating lawmakers raises eyebrows among Hong Kong lawyers

Chris Lau
·5-min read

The legality of Beijing’s unprecedented resolution allowing for the summary disqualification of four opposition Hong Kong lawmakers has raised concerns among the city’s legal community, even as the pro-establishment camp insisted on Friday that the unilaterally imposed rule was constitutionally sound.

Hong Kong’s Law Society, which represents more than 10,000 solicitors, urged the government on Friday to address the legal basis behind the removal, a day after the Bar Association accused Beijing of impairing “legal certainty” with its ruling.

“To ensure due process, transparency and accountability in all its actions, the [city] government is duty bound to address clearly those concerns, in particular the legal basis on which the disqualification was effected,” the Law Society said in a statement.

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Seven Law Society council members – including University of Hong Kong academic Eric Cheung Tat-ming and human rights lawyers Kenneth Lam, Mark Daly and Jonathan Ross – also released a separate statement in their personal capacities taking an even more strident tone in opposition to the move.

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“Legislators are representatives of the people who must not be unseated by the executive branch alone; otherwise the right of political participation would be seriously abrogated,” said the seven, who also included three newly elected council members, Davyd Wong, Michelle Tsoi Wing-tak and Janet Pang Ho-yan.

At the centre of the controversy was a resolution handed down by China’s top legislative body on Wednesday setting out a series of prohibited acts – ranging from endangering national security to dishonouring the pledge of allegiance – for which any Hong Kong lawmaker can be summarily unseated without the need to involve either the courts or the existing constitutional mechanism for removing legislators.

Within hours of the resolution, the local government had booted four lawmakers – Civic Party’s Alvin Yeung Ngok-kiu, Kwok Ka-ki and Dennis Kwok, along with Kenneth Leung of the Professionals Guild – prompting the Legislative Council’s 15 remaining opposition lawmakers to also resign in protest.

(Left to right) Lawmakers Kenneth Leung, Kwok Ka-ki, Alvin Yeung and Dennis Kwok speak to the press about their ousting on Wednesday. Photo: Dickson Lee
(Left to right) Lawmakers Kenneth Leung, Kwok Ka-ki, Alvin Yeung and Dennis Kwok speak to the press about their ousting on Wednesday. Photo: Dickson Lee

The resolution noted that the four lawmakers had previously been barred from running for re-election by local returning officers, who cited their previous vows to stall the government’s budget and their perceived support for foreign intervention in Hong Kong as being in contravention of the city’s sweeping, Beijing-imposed national security law.

The seven Law Society council members, however, argued that returning officers’ initial decision to bar the four from running was erroneously based on conduct that took place before the national security law was in effect, and that Beijing’s resolution was, in turn, based on that flawed reasoning.

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“The requirements are therefore applied retroactively, contrary to constitutional principles and international standards,” they wrote. “We urge the Chinese and Hong Kong authorities to respect the rule of law and not to override the rule of law with politics.”

In its own strongly worded statement on Thursday, the Bar Association argued, more to the point, that Beijing’s move had bypassed the existing censuring procedure laid out in Article 79 of the city’s mini-constitution, the Basic Law, which required a two-thirds vote in the Legco chamber to remove a lawmaker.

Calling Beijing’s new guidelines “an entirely different way”, the association said the mechanism deprived those facing accusations an opportunity to be heard, a departure from the city’s long-held commitment to due process.

“Legal certainty has been greatly impaired,” said the body, which comprises some 1,500 Hong Kong barristers.

Pro-establishment lawmakers returned to Legco without their rivals on Friday, with some reminding visiting officials that they should no longer “trivialise” members’ questions now that the opposition camp – which often relied on stalling tactics to delay unpopular bills – was gone.

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Without the opposition present, the Finance Committee managed to pass a government funding request to create a new permanent position at the financial secretary’s office, but another item – which involved the retention of two posts in the Commerce and Economic Bureau – was withdrawn after failing to secure lawmakers’ support.

The Beijing-friendly bloc also took the opportunity to reiterate their support for the new resolution, with convenor Martin Liao Cheung-kong maintaining it automatically enjoyed “constitutional status” as it was handed down by China’s top legislative body. Another lawmaker said the four “got what they deserved”.

Lawmaker Martin Liao (centre), leader of the pro-establishment bloc, has insisted Beijing’s resolution enjoys “constitutional status”. Photo: K. Y. Cheng
Lawmaker Martin Liao (centre), leader of the pro-establishment bloc, has insisted Beijing’s resolution enjoys “constitutional status”. Photo: K. Y. Cheng

The bloc pledged, in a statement read out by Liao, to “scrutinise and assist” the government in a constructive way going forward.

More than 30 Hong Kong members of Chinese People’s Political Consultative Conference, Beijing’s advisory body, also expressed their firm support for the resolution, saying that it would provide clear guidelines for Legco elections in the future.

Former chief secretary Henry Tang Ying-yen, now a standing member of the body, suggested if the opposition lawmakers who resigned wished to take part in future elections, they should withdraw their resignations and write a joint letter to the United States “saying that they regret their previous request for American intervention”. Not all of opposition lawmakers had made such a call.

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Meanwhile, Chris Patten, the last colonial governor of Hong Kong, said the disqualifications had essentially been determined based on patriotism, and showed that Hong Kong’s concept of an open society had increasingly come to be seen as a threat to the Chinese Communist Party.

“Hong Kong represents all the aspects of an open society which the Chinese Communist Party is terrified of,” he said. “That explains them throwing their weight around.”

US Secretary of State Mike Pompeo said his country strongly condemned what he termed the “patriotism resolution”, which he said had trampled on Hong Kong people’s rights to choose their elected representatives.

“We will hold accountable the people responsible for these actions and policies that erode Hong Kong’s autonomy and freedoms,” he said in a statement.

Additional reporting by Cheryl Heng

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