Symposium: Yau Wai Ching v Chief Executive of HKSAR: A Landmark Blow to Liberal Constitutionalism

Surabhi Chopra

Chinese University of Hong Kong

The Hong Kong Court of Final Appeal's decision in Yau Wai Ching v Chief Executive of HKSAR (2017) 20 HKCFAR 390 is a landmark case. It marks a decisive turn away from liberal constitutionalism in Hong Kong. Below, I discuss this case and its implications.

Hong Kong's 2014 Umbrella Movement protests (lasting seventy-nine days) did not elicit any concessions from the Chinese government on democratic reform. But they did forge a new generation of political activists, some of whom ran for election to the legislature in September 2016 and emerged victorious. On 12 October 2016, two of these neophyte legislators, Yau Wai-ching and Leung Chung Hang (Sixtus), were sworn into office. Both chose to turn their oath-taking into a protest. Each held a banner that said, "Hong Kong is not China". Each purposely mispronounced the country's name in a derogatory manner.

In response, the President of the Legislative Council declared that both Yau and Leung had failed to take their oaths of office as required by the Oaths and Declarations Ordinance (Cap 11) ('OADO'), but would be offered another opportunity to do so. The very same day, the Secretary for Justice applied for judicial review of this legislative decision. The government argued before the Court of First Instance that Yau and Leung had breached not just the statutory requirement regarding oath-taking under the OADO, but also the constitutional responsibility in relation to oaths of office imposed by Article 104 of the Basic Law, Hong Kong's regional constitution. As such, argued the government, both Yau and Leung were automatically disqualified from assuming office, and could not be afforded another opportunity to take the oath. Mr Leung and Ms Yau responded by arguing, inter alia, that matters related to oath-taking by a legislator were the internal business of the Legislative Council in which the judiciary should, per the established common law principle of non-intervention, decline to intervene. 

While judgment was pending, the Standing Committee of the National People's Congress (the national legislature) issued an interpretation of Article 104 of the Basic Law of its own accord. This Article provides that holders of high office, including members of the Legislative Council, must "in accordance with law", swear to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region of the People's Republic of China (PRC). The OADO lays down the specific wording of the oath that legislators must take. The Standing Committee's Interpretation stated that Article 104 requires the oath-taker to, genuinely, believe in the oath, and mandates immediate disqualification, with no second chances, for failure to take the oath.

The Standing Committee's suo motu intervention rendered judicial deliberation on whether Yau and Leung could re-take their oaths irrelevant as its interpretations of the Basic Law binds Hong Kong courts. This was problematic. As several commentators have noted, the Interpretation adds requirements to Article 104 that fit neither the words nor spirit of the provision (see Chan 2019; Chan 2016). It converts a formal obligation into a substantive threshold for office. Additionally, it imposes a consequence that is not prescribed by Article 104, and which sits uneasily with the legislature's constitutional authority over its own procedures (Article 75) and the disqualification of its members (Article 79). 

Even more troubling than the substance of the Interpretation was its timing. This was the first time since the Basic Law came into force in 1997, that the Standing Committee had issued an interpretation during judicial proceedings, absent a judicial request. In doing so in 2016, the Standing Committee destabilized the delicate equilibrium that existed between the PRC legislature and the Hong Kong judiciary on interpreting the Basic Law. 

The Basic Law is, in many ways, a unique sub-national constitution. It enshrines Hong Kong's status as a special administrative region with a high degree of autonomy within the PRC's unitary, authoritarian political system. Under the One Country Two Systems framework established by the Basic Law, Hong Kong is ostensibly granted a high degree of political, legal and economic autonomy. The Basic Law expressly protects judicial independence (Article 85), provides the foundation for judicial review (Article 11), and assigns the power of final adjudication to Hong Kong's Court of Final Appeal rather than a national appellate body (Article 82). It preserves Hong Kong's common law legal system (Article 8) and recognizes a range of civil and political fundamental rights. It also contains creative mechanisms for interaction between the political and legal systems of Hong Kong and mainland China. 

One such arrangement pertains to sharing the power of constitutional interpretation (Article 158). The Standing Committee of the National People's Congress has plenary authority to interpret the Basic Law, while Hong Kong judiciary can interpret it in the context of adjudication. When interpreting Basic Law provisions that involve the relationship between the Centre and Region, or concern matters that are outside the purview of the Hong Kong authorities, the judiciary must request the Standing Committee elucidate the meaning of the provision and apply that interpretation to the facts in the relevant case. It is settled constitutional practise in Hong Kong that the apex Court of Final Appeal is obligated to seek a constitutional interpretation from the Standing Committee, when necessary. But the courts below are not. The Standing Committee broke with this convention. Its uninvited Interpretation was issued during the first level of judicial review.

The Court of First Instance ruled in favour of the government, relying upon the statutory rather than constitutional provisions to reach its conclusion (Chief Executive of the HKSAR v The President of the Legislative Council [2016] 6 HKC 417 (CFI)). It held that the relevant provisions of the OADO implied automatic disqualification of the two legislators-elect. Yau and Leung appealed. They urged non-interference in the legislature's management of its affairs and also challenged the Standing Committee's Interpretation. They argued that the Interpretation amended rather than interpreted Article 104 because it attached to the oath-taking obligation a consequence – mandatory disqualification – that the constitutional provision neither expressly nor impliedly contained. They submitted that the Standing Committee, while ostensibly construing Article 104, was actually construing (and adding to) the provisions of the OADO. This is significant because the OADO is local legislation and the Basic Law bars the Committee from construing such laws. They also argued that the Interpretation – issued after they had taken their oaths – should not be applied retrospectively. The Court of Appeal emphatically rejected these arguments and upheld the lower court's decision.

When Yau and Leung sought to appeal this outcome, the Court of Final Appeal denied them leave to do so. While the Court of Final Appeal based its decision on a procedural issue, it did engage at some length with the appellants' substantive arguments. The Court acknowledged that the judiciary defers to the legislature's authority over its internal procedures. But, it emphasized that this principle of judicial restraint must cede to the Court's duty to enforce the constitutional duty regarding oaths of office. The Court then reiterated that, as the Standing Committee had specified, Article 104 required the automatic disqualification of a person who failed to take the oath appropriately. 

The Court unequivocally rejected the appellant' arguments that the Standing Committee's Interpretation was a stealth amendment or that the Committee was acting ultra vires. It also rebuffed the argument that the Interpretation should only apply prospectively. The Court noted that the Standing Committee's power to interpret the Basic Law was rooted in a legal tradition withing which legislative interpretation could augment laws. It reaffirmed an earlier decision in which it had stated that the Standing Committee's interpretations of Basic Law provisions have retrospective effect (Lau Kong Yung v Director of Immigration).

Situated as they are, in a common-law enclave within a communist state, Hong Kong's senior judiciary must necessarily attend to the tacit political constraints on its constitutional jurisdiction. After an early misstep, the Court of Final Appeal has navigated this predicament nimbly. It has, for example, skilfully limited the scope of a past Standing Committee interpretation even while affirming its binding nature (Director of Immigration v Chong Fung Yuen). 

In Yau Wai Ching, declaring the Interpretation ultra vires would have been risky. However, the Standing Committee issued the Interpretation while directly-related judicial proceedings were underway – a novel situation. The Court could, therefore, conceivably have held that the Interpretation of Article 104 would only bind future oath-taking, and also that any Standing Committee interpretations unrelated to litigation could (as previously held) apply retrospectively (Chan 2019; Jhaveri 2017).

The Court of Final Appeal's wholesale embrace of the Standing Committee's politically expedient Interpretation diluted the integrity of Hong Kong's legal system. It signalled that independent judicial review – that bedrock of liberal constitutionalism – exists at the pleasure of the Mainland authorities.  The case also foreshadowed further departures from liberal constitutionalism. The government's aggressive response to Yau and Leung proved not to be specific to their unusually crass protest. It was followed by further litigation and policy measures designed to remove pro-democracy legislators from office or disqualify pro-democracy candidates from contesting elections in the first place. In November 2020, four pro-democracy legislators were removed from office by executive fiat. Several other resigned in protest.  Although only partially representative, Hong Kong's legislature had played an important role in fostering political debate and accountability. Now, with dissenting voices systematically excised, it is likely to be docile.

Yau Wai Ching – in the arrogation of power by Beijing and the Hong Kong government, the weakening of the legislature, and the acquiescence of the judiciary – crystalizes and represents Hong Kong's authoritarian turn.

Surabhi Chopra is Associate Professor at the Faculty of Law, Chinese University of Hong Kong.

Suggested citation: Surabhi Chopra, ‘Yau Wai Ching v Chief Executive of HKSAR: A Landmark Blow to Liberal Constitutionalism’ IACL-AIDC Blog (15 December 2020) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-asia/2020/12/15/yau-wai-ching-v-chief-executive-of-hksar-a-landmark-blow-to-liberal-constitutionalism