Hong Kong oath case could have far-reaching implications for 'One Country, Two systems'

Confidence in Hong Kong's legal system is in danger, after Beijing dramatically raised the stakes in its battle to quell pro-independence sentiment in the city.

There is rampant speculation Beijing will use its power to overrule Hong Kong's courts in a case involving two controversial lawmakers, in what would be a highly unusual move that could undermine the "One Country, Two Systems" principle that has dictated relations between the mainland and its special administrative region (SAR).

Yau Wai-ching, 25, (centre L) and Baggio Leung, 30, (centre R) at the High Court  in Hong Kong on November 3, 2016. The duo who advocate a split from China should be banned from taking up their seats, government lawyers argued in court on November 3, as concerns grow Beijing will wade into the escalating row.
ANTHONY WALLACE - AFP - Getty Images
Yau Wai-ching, 25, (centre L) and Baggio Leung, 30, (centre R) at the High Court in Hong Kong on November 3, 2016. The duo who advocate a split from China should be banned from taking up their seats, government lawyers argued in court on November 3, as concerns grow Beijing will wade into the escalating row.

What happened

Sixtus Baggio Leung Chung-hang, 30, and Yau Wai-ching, 25 were among 22 pan-democrats and eight "localist" candidates that won seats in Hong Kong's Legislative Council (LegCo) in September electionsan unprecedented result for a political system that has traditionally been dominated by pro-Beijing sentiment.

Leung and Yau are considered localistsa loose group that focuses on the interests of Hong Kong society, made up primarily of young people involved in the 2014 pro-democracy Umbrella Movement.

The election result prompted Beijing to issue a series of warnings that the localists' stance was untenable, and that campaigning for Hong Kong's independence was against the SAR's law as well as China's constitution.

Undeterred, Leung and Yau pledged allegiance to "the Hong Kong nation" and held a banner saying "Hong Kong is not China" at their October 12 swearing-in ceremony. The original oath's wording includes a declaration of loyalty to Hong Kong as a SAR of China. In retaliation, the city's Beijing-backed Chief Executive C.Y. Leung requested the courts to oust the duo from LegCo, and a judicial review that began Thursday will now decide whether the pair can retake the oaths.

For now, Leung and Yau are banned from LegCo meetings though they have stormed LegCo chambers twice, with their most recent attempt on Wednesday resulting in the injury of six security guards.

Unsurprisingly, their moves further enraged Beijing. The National People's Congress Standing Committee (NPCSC)—the mainland's top legislative body—also began a meeting to discuss the matter on Thursday, according to the South China Morning Post.

A blow to HK's system

Now, there are fears Beijing will decide on Leung and Yau's LegCo fate, overriding any decision made by Hong Kong's judiciary.

Baggio Leung (C) is restrained by security at Legco in Hong Kong on November 2, 2016. In the third consecutive week of chaos in the legislature, pro-independence lawmakers Baggio Leung and Yau Wai-ching entered the Legislative Council (Legco) on November 2 despite being banned from doing so, pending the result of a judicial review into whether they can take up their seats.
ANTHONY WALLACE - AFP - Getty Images
Baggio Leung (C) is restrained by security at Legco in Hong Kong on November 2, 2016. In the third consecutive week of chaos in the legislature, pro-independence lawmakers Baggio Leung and Yau Wai-ching entered the Legislative Council (Legco) on November 2 despite being banned from doing so, pending the result of a judicial review into whether they can take up their seats.

"China does have the power to do this but they've never used it before. Now, you're seeing people in Hong Kong worried about the rule of law and potential damage to confidence in Hong Kong's court system," Danny Gittings, associate law professor at the University of Hong Kong, told CNBC.

"One Country, Two Systems" the city high levels of autonomy from the mainland but many believe that principle is fast eroding amid a slew of incidents that reveal greater Chinese control, such as Thailand's recent detention of activist Joshua Wong and the 2015 disappearance of five book publishers.

In a statement on Wednesday, the Hong Kong Bar Association said Chinese legal interference on Leung and Yau's case would deal a severe blow to the independence of the city's judiciary. "The irreparable harm it will do to Hong Kong far outweighs any purpose it could possibly achieve...The Bar implores the NPCSC to exercise the highest degree of restraint in handling this highly sensitive incident as its gesture will have critical implications on One Country, Two Systems."

Leung and Yau are members of Youngspiration, one of many independence-oriented parties established in the aftermath of the 2014 protests. Others include Demosisto, spearheaded by Joshua Wong, and Civic Passion.

Beijing is aware of the outcry its interference would cause, but Youngspiration has catapulted the autonomy issue to a level where China no longer cares about potential damage to its relationship with Hong Kong, Gittings explained. "China is normally very careful about using this [legal] power; they will only do it for issues of intense importance."

The HK government's role

Benson Wong, assistant professor at Hong Kong Baptist University, recently told CNBC that the entire affair was an intentional action taken by C.Y. Leung to deflect attention from corruption allegations.

A 2014 editorial in the Apple Daily newspaper accused Leung of receiving a $6.4 million payment from Australian firm UGL before he took office in 2012, a scandal that may undermine his hopes for re-election next year. Leung has denied any wrongdoing and threatened to sue the paper.

Beijing maintains the right to select candidates for the post of Hong Kong chief executive, and while universal suffrage is an "ultimate aim" under Hong Kong's constitution, it remains out of reach after Beijing ruled out open nominations in 2014.

Even before September's LegCo election, the government wanted to disqualify pro-independence candidates, so Leung and Yau's antics gave Leung a useful opportunity to target them, Wong explained.

'Symbolic politics'

But it's not just China who's angry; Hong Kongers have also expressed disappointment with the duo's radical actions. Many believe democracy has a higher chance of success if players worked within the existing system. Their behavior has raised such a counter reaction that it could do more harm than good, suggested Gittings.

A total of five lawmakers had their original oaths invalidated last month, including Edward Yiu Chung-yim, who added the phrase "for democracy and for Hong Kong's sustainable development" and Lau Siu-lai, who first read the pledge in slow motion. Three of the five have since retaken their pledges and were officially sworn-in, leaving just Leung and Yao.

But with zero prospect of real Hong Kong independence for years to come, critics questioned why Localists made a fuss about the oath in the first place.

"Symbolic politics" was the game here, argued Brookings Institution strategists in a recent note.

"In contesting the authorities' right to dictate the oath for new members, the Localists are challenging the very legitimacy of the LegCo institution itself, which Beijing designed to protect the interests of some groups and block the agendas of others."

Indeed, it was time pan-democrats abandoned the notion that Hong Kong must follow the rules of China's game to get things done, Wong pointed out.

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