After more than three weeks of confusion and controversy at Hong Kong's legislature over the oaths of two rebel lawmakers, on Thursday a court heard a judicial review brought by the government on the powers of the Legislative Council president, and whether Yau Wai-ching and Sixtus "Baggio" Leung could still hold on to their seats.
The case has garnered widespread public attention, with many concerned that the legal action is a sign that the territory's executive branch is unduly interfering in the legislature. Crowds packed out Hong Kong's High Court on Thursday.
Two months ago, Yau and Leung were elected to the Legislative Council on platforms that condemned Beijing's growing influence in Hong Kong and flirted with the idea of the semiautonomous territory's outright independence. When delivering their oaths of office on Oct. 12, the lawmakers shirked protocol, pledging loyalty to the "Hong Kong Nation." They also referred to China as Shina, a Japanese affectation regarded as highly derogatory following the wartime occupation. The gesture deeply offended both establishment politicians and members of the public.
In its submission, the government argued that the Basic Law, Hong Kong's miniconstitution, stipulates that lawmakers must "swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China.” Representing the government, barrister Benjamin Yu told the court that because the duo refused to take their oaths properly, they have effectively declined the oath and therefore their seats should be vacated. The government also argued that the Basic Law's Article 77, which states that lawmakers "shall be immune from legal action in respect of their statements at meetings," does not apply to the oath of office.
But Yau's lawyer, Philip Dykes, argued on the grounds of separation of powers, saying that the pair's fate should be decided by the legislature, where a two-thirds majority is required to strip a lawmaker of their seat. Leung's lawyer Hectar Pun also argued that the business of legislators is "entirely within the four walls" of the legislature, and that it is not suitable for the courts to be involved.
"The different branches of the government are generally mindful not to intrude on the other's area," Michael Davis, a retired law professor of the University of Hong Kong, tells TIME. "The more controversial problem in this case is that the government is asking the courts to interfere in the internal process of the legislature.”
Alvin Cheung, an affiliate researcher at New York University’s U.S.-Asia Law Institute, in an email to TIME says: "The government's application sets a disastrous precedent, regardless of how the court rules," adding that Hong Kong's Court of Final Appeal had ruled unanimously in a separate case in 2014 that the courts would not intervene in the legislature's internal processes.
Similar sentiments were echoed in court by Jat Sew-tong, who represented Legislative Council president Andrew Leung — a third respondent to the case, despite his pro-Beijing affiliation — arguing that how the president exercises his power is an internal matter a nd that he should not become part of this litigation.
The case has exacerbated concerns over Beijing's intervention in Hong Kong's internal affairs, and experts say it is a crucial litmus test of the territory's judiciary — perceived as a bulwark of Hong Kong's autonomy from China, which was established under a "one country, two systems" dynamic.
Earlier this week, Hong Kong's head of government, Chief Executive Leung Chun-ying, said he "cannot rule out" the possibility of asking Beijing to step in and interpret the matter. (The deeply unpopular Leung Chun-ying is often characterized as Beijing's stooge.) The government has said that the matter "can and should be resolved" within Hong Kong's judicial system, though past incidents have led some to worry that Beijing might overstep its boundaries.
The government "knows full well that the political consequences of requesting an interpretation, or being seen to request an interpretation, to pre-empt Hong Kong's judicial proceedings would be catastrophic," Cheung tells TIME. Adds Davis: "When Beijing issues interpretations, they often have some element of amendment.”
Beijing is anxious over mounting calls in Hong Kong for the territory's independence — however infeasible experts agree that call to be.
"China would never tolerate it — it's not Canada, where the Quebec people can have a vote" on independence, says David Zweig, longtime China observer and professor of social science at Hong Kong University of Science and Technology, adding that with similar concerns about Taiwan and other peripheral regions of China like Xinjiang and Tibet, separatism "is something also on their mind."
"[Yau and Leung] were lucky enough to get elected, and they should've known that forces in the city and Beijing would be looking for ways to kick them out,” says Zweig. "They're doing a fantastic job of giving the hard-liners both in Beijing and Hong Kong a reason to kick them out."
The court is expected to deliver an opinion imminently.