Protest and Paralysis

According to Article 104 of the Basic Law, the official 77-word oath requires legislators to swear to uphold Hong Kong’s Basic Law and “swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.” 　

As pro-independence sentiments have been on the rise in Hong Kong in the last couple of years, Beijing has long considered the oath-taking a symbolic event that highlights China’s sovereignty and authority over Hong Kong. For the very same reason, some Hong Kong’s pro-democracy lawmakers, who have become increasingly sympathetic to the independence movement, have also used the ceremony as a platform to express their protests against Beijing’s authority. In the past, lawmakers have added new phrases to the oath, carried banners with political slogans or chanted anti-Beijing slogans before or after taking the oath. 　

This year, the lawmakers in question adopted similar tactics. Roy Kwong Chun-yu, a Democratic Party lawmaker added “Hong Kong is the home ground of Hongkongers” and “I want genuine universal suffrage” to the oath. Cheng Chung-tai from Civic Passion said he would fight to “rewrite the constitution by the people” after taking the oath. Leung Kwok-hung, another localist lawmaker called for “civil disobedience” while holding a yellow umbrella, a symbol of the Occupy movement of 2014. Lau Siu-lai, yet another localist lawmaker, resorted to reading the 77-word oath in slow-motion, pausing for five seconds after each word and taking 10 minutes to finish it. 　

However, two of the lawmakers took their protest to another level. While holding a “Hong Kong is not China” banner and saying that we pledge allegiance to the “Hong Kong nation” in her first attempt at taking the oath, Yau Wai-ching, a 25-year-old from the newly-formed Youngspiration party then changed “People’s Republic of China” into “People’s Refucking of Cheena” when taking the oath. Yau’s Youngspiration colleague, 30-year-old ‘Baggio’ Sixtus Leung Chun-hang, held a similar flag and took a similar oath that also incorporated “Cheena.”　

“Cheena” (or “Zhina”) is a term originating from translations of ancient Sanskrit texts for referring to China. Although the term was deemed neutral in ancient times, it became a racial slur after Japan adopted the term to refer to China in a derogatory way during its invasion of the country in the early 1930s and during WWII. The term is considered so offensive that the post-war Japanese government banned the term in any official publications at the request of the government of the then Republic of China’s in 1946.　

In the end, the oath-taking of three newly elected lawmakers (Yau, Leung and Lau) was deemed invalid by Andrew Leung Kwan-yuen, the President of the Legislative Council, though Leung allowed them to retake their oaths at a later time. 　

The decision, along with the two lawmakers’ racially-charged language, immediately drew protest from both the Hong Kong government and the Hong Kong public. It is estimated that 94 percent of Hong Kong people are ethnic Chinese. Despite the rising pro-independence sentiment, particularly among the younger generation, with localist groups winning some 20 percent of the votes in the LegCo election, Yau Wai-ching and Leung Chung-hang’s racially-charged language was widely condemned.　

An internet petition demanding the pair apologize and resign attracted 94,000 replies in four days and several protests were organized during the following weeks to protest against the lawmakers’ racial slur against China. The largest of these protests was the one held in the public square outside the LegCo complex on October 25, attended by more than 8,000 people according to the police, with many holding banners calling the lawmakers “traitors” and “scum.”　

Hong Kong’s Chief Executive Leung Chun-ying and Justice Secretary Rimsky Yuen Kwok-keung also mounted a legal challenge on Hong Kong’s High Court to disqualify Yau and Cheung on the grounds of contravening the Basic Law. While the court agreed to review the case, it rejected Hong Kong government’s request to bar the pair from retaking their oaths. 　

Failing to stop the re-swearing-in ceremony, the pro-establishment camp then tried another strategy, staging a protest walkout when the lawmakers in question were about to retake their oath as the ceremony was held on October 19, effectively preventing them from being sworn in. 　

In response, Cheng Chung-tai, another localist lawmaker turned the Chinese and Hong Kong flags on the desks of the pro-establishment lawmakers upside down twice, before being expelled by Leung, the LegCo president. Leung later announced that he would postpone the swearing-in ceremony for the two lawmakers until the High Court made its decision on the case, while allowing the other lawmaker Lau Siu-lai, who read the oath in slow motion, but had not used abusive language, to retake the oath. 　

A week after, on October 26, the confrontation between the pro-democracy and pro-establishment camp in the LegCo escalated, when Youngspiration’s Yau and Leung stormed the LegCo chamber in an attempt to complete their oath taking. As the duo rushed to the center of the room to read out the oath, security guards tried to remove them while other pro-democracy lawmakers rushed to their defense, and physically clashed with security guards and pro-establishment lawmakers. In the following commotion, four guards were injured. 　

As the disputes escalated and the LegCo was effectively paralyzed, it proved too much to bear for Beijing, which had been watching the situation very closely. On November 4, China’s National People’s Congress Standing Committee (NPCSC) announced that it would issue a legal interpretation of Article 104 of Hong Kong’s Basic Law to clarify the city’s oath-taking procedure for officials. 　

The decision immediately drew outcry from the pro-democracy camp in Hong Kong, with many arguing that the central government’s decision to step in before Hong Kong’s High Court could deliver its ruling is an example of how the central government violates Hong’s Kong judicial independence. Others argued that the NPCSC could not intervene unless explicitly requested by Hong Kong’s Court of Final Appeal, the special administrative region’s highest court. 　

In a press conference held on November 7, Li Fei, deputy secretary-general of the NPCSC and chairman of its Basic Law Committee said that Article 158 of the Basic Law, which states that “the power of interpretation of the Basic Law should be vested in the NPCSC” means that the NPCSC’s power to mete out legal interpretation has a solid legal basis. 　

According to the interpretation handed down by the NPCSC, swearing-in is a “legal prerequisite” for all high-level public administrators, lawmakers and judges in Hong Kong. Requiring oath takers to take the oath “sincerely and solemnly,” it specifies that officials will be disqualified for failing to take the oath and once an oath-taking is determined to be invalid, it cannot be retaken. 　

The interpretation stressed that the swearing-in is the “legal prerequisite” for public officials to assume office. No public office can be assumed, no corresponding powers and functions can be exercised, and no corresponding entitlements can be enjoyed by anyone who fails to lawfully and validly take the oath or who declines to take the oath.　

Li stressed that the NPCSC’s interpretation of the Basic Law is also a constitutional component of the city’s legal system, and courts in Hong Kong must make their rulings accordingly. 　

It is not unprecedented for the NPCSC to take the initiative to interpret Hong Kong’s Basic Law. Since Hong Kong’s return to China, the NPCSC has interpreted the Basic Law on four previous occasions, in 1999, 2004, 2005 and 2011. Except for the 2011 case regarding the application of state immunity in sovereign lawsuits in Hong Kong, in which the NPCSC stepped in at the request of the Court of Final Appeal, for the other three occasions – concerning the residency status of children born in the Chinese mainland to Hong Kong residents, the election of the chief executive and legislative council and the replacement of a chief executive – the NPCSC took the initiative to interpret the Basic Law. Every time, its decision caused controversy.　

After the NPCSC decided to intervene, about 8,000 protestors took to the streets of Hong Kong, anticipating a ruling against the oath-takers. Chanting pro-independence slogans, they clashed violently with local police. Smaller scale protests persisted the following day. In response, the pro-establishment camp organized a counter demonstration to support the NPCSC decision and condemn the independence groups. In one of the largest rallies on November 13, an estimated 28,500 people took to the streets. 　

Both the Hong Kong government, including Chief Executive Leung Chun-ying and the LegCo president Andrew Leung Kwan-yuen, have said that they supported the ruling. Stressing that the NPCSC has only interpreted the Basic Law five times in the last 20 years, Leung Chun-ying said Beijing has been careful to exercise its power. Andrew Leung Kwan-yuen said he expected the council to resume normal operations after the dispute is settled. 　

On November 15, Hong Kong’s High Court made its ruling on the case, disqualifying Yau and Leung from their posts over their oath-taking antics. Although the pair vowed to appeal, it is believed that there is little chance that their argument will prevail in Hong Kong’s Court of Final Appeal. 　

However, although the NPCSC’s legal interpretation may be able to effectively settle the legal dispute, the political uncertainty resulting from the month-long row is far from over, nor will it help to mend the widening division in Hong Kong society over its relationship with Beijing.　

As pro-establishment lawmakers and activists have now filed lawsuits requesting the court to disqualify other localist lawmakers who had deviated from the official oath when swearing in but had have their oath-taking accepted earlier, it remains unclear whether more lawmakers will be disqualified. As disqualification would lead to vacated seats, it is also unclear whether and when a by-election could be held. 　

As political animosity and radicalization deepen, it appears that Hong Kong’s political gridlock will persist for years to come.