When is an oath not an oath? That’s a question for Hong Kong’s courts, not the legislature
Ronny Tong says despite the howls of protests, the government’s challenge over two incoming legislators’ fitness to serve – after they bungled their oaths on purpose – has solid legal grounds
Everyone expected the Hong Kong localists to start some kind of trouble at the swearing-in ceremony of newly elected legislators, but no one foresaw the magnitude of the storm. Yau Wai-ching of Youngspiration made our jaws drop when, while taking her “oath”, she said “Re-f**king” and “Cheena”, a derogatory term the Japanese used for China during the second world war. Her fellow party member, Sixtus Baggio Leung Chung-hang, also said “Cheena” in his “oath”. Clearly, both legislators-elect intended to humiliate the Beijing government. Well, humiliate all Chinese they did.
What surprised people more is that the pan-democrats not only did not see anything wrong with such antics, but they chose to rally behind the two, as if to show solidarity. One even went so far as to say, “A bit of humour and relaxation is OK!” So, should “humour and relaxation” go hand in hand with the taking of an oath?
One would have thought it’s axiomatic that oath-taking is a solemn and sincere act. One doesn’t joke about one’s religion or integrity as a person – no normal person who wants others to take him seriously will do so, anyway.
The law makes it even clearer. The Oaths and Declarations Ordinance refers to the oath to be taken by legislators as a “promissory oath”. It also provides that the content of the oath must be in the form as set out in schedule 2 thereto. A court has ruled in a previous case that incoming legislators must not depart from the statutory oath so provided. That means: sorry, one cannot read the People’s Republic of China as People’s “Re-f**king” of “Cheena”.
The statute is also clear on an equally important point. It says “any person who declines or neglects to take an oath duly requested” shall, “if he has not entered into his office, be disqualified”. Everyone focuses on the words “declines or neglects” when the words “duly requested” are just as telling. The words suggest that the section refers not to a general state of affairs or intent but a specific occasion. If on that occasion a person declines or neglects to take the statutory oath, the legal consequence is that he shall be disqualified immediately. “Immediately” because there are no other conditions that need to be fulfilled; not a “decision” from the president of the Legislative Council or a “declaration” from anyone. The law does not say that. There is no second chance for another swearing in.
This makes sense. A promissory oath is a solemn and binding oath. If you intentionally choose to flout it and use it to ridicule the system or make a political point, why should anyone presume you have the intention to make the statutory oath even if you were given a second chance? Why would people believe you even if you take another oath?
The point of law is therefore quite clear, although some pan-democrats still saw fit to query why the “oaths” taken by the two were not “oaths”. Even Yau and Leung knew there was something wrong with what they did. They sought to blame their poor English, or their “accent”, a lie no one believes, including themselves. So much for the integrity of our “honourable” members of the council.
But, even if you don’t wish to engage in the niceties of the law, what Yau and Leung did was politically unacceptable. Logically, if you wish to fight for something within the system, you need to get into that system first. Look at Aung San Suu Kyi. She was put under house arrest for 15 years by the junta in Myanmar. When she was freed and finally elected a member of Parliament, she struggled over whether to take the oath to “safeguard” the constitution, which she had denounced as undemocratic. Nevertheless, she did take that oath. Since then, she has performed her duties and earned respect for herself, and hopefully a brighter future for the people of Myanmar. I don’t expect our lawmakers to have Suu Kyi’s political fortitude and commitment, but surely a little honesty and integrity doesn’t hurt.
But the problem is larger than that. What has happened transcends mere politics. Not insulting others is a matter of basic decency. To do so at a solemn occasion like the Legco swearing-in – and aiming the insult at the Chinese as a people, no less – makes a mockery of Legco as an institution and our society as a tolerant and pluralistic modern international city.
If Yau and Leung cannot see that, the pan-democrats ought to. Alas, none did. That speaks volumes about our political future.
What now? Well, the government has taken action to stop this nonsense from continuing. Again, the pan-democrats have cried foul. They say this action “ tramples” on the separation of powers. They said nothing, however, when section 73 of the Legislative Council Ordinance was put on the statute books. Section 73 says the government can bring an action in the interest of the public if a person is claiming to be or acting as a member of the council when he is disqualified as such.
Many people also seem to have misunderstood what the separation of powers is. Separation of powers refers to a system of governance where the powers of a state are divided and exercised by separate institutions. Sometimes the division is clearly delineated; sometimes it is not.
Until 2005, the UK belonged to the latter category. This is because the Lord Chancellor, a member of the Upper House of Parliament and a cabinet member, was traditionally also the top judge. On the other hand, the US has the clearest demarcation of the three branches as all checks and balances are spelt out in the constitution.
This is the key. Separation of powers is all about mutual respect and checks and balances – not that one is untouchable by the other. The common thread is that all are under the guidance and governance of the law. The legislature will make laws to restrict the powers of the executive and the judiciary, whereas the executive will make use of the courts to restrict the make-up of the legislature, and so on. The line is drawn at the internal workings of each institution.
In Hong Kong, this is borne out by the Legislative Council (Powers and Privileges) Ordinance, which protects members from being arrested while going to and leaving the council and from all legal action while taking part in debates in the council. Furthermore, time and again when members of the council have taken Legco to court over its internal workings involving conduct of the Legco president(yes, our members have invited the court to “interfere” with the council’s internal procedural matters more than anyone else), the courts have always been slow to “interfere”, other than stating matters of obvious principle.
Indeed, the court ruling cited earlier, which gave us a clear meaning of an oath, was the result of one of these challenges. Nobody said anything about “trampling” on the separation of powers at the time.
The courts have the power to decide who is properly elected and who is qualified to become a member of Parliament, never just the legislature itself, let alone the president.
Who initiates the legal action is hardly the deciding factor. Is anyone seriously saying that if the government cannot sue and there is no challenge from the public, someone who has plainly been disqualified can become a member of the council with all the necessary consequences?
The only flaw in this legal action is the presence of the chief executive as a plaintiff. There is no legal need for it. The secretary for justice (in the colonial days, this would have been the attorney general) is always the legal representative acting for the entire government. One can only assume that Leung Chun-ying’s appearance as the plaintiff is an eager attempt to please Beijing, or to “demonstrate” he is a “loyal” and “able” servant determined to quell this sickly insubordination, in order to increase his chance of staying in office.
However, even if this were true, it does not affect the legal basis of the suit. The suit is filed with proper legal basis. In any event, the court has given leave.
When all is said and done, we can only await a final decision from the courts and this may take time. It may be that our legislature might not have the full quorum of 70 members for quite some time. The two legislators-elect can’t take up their duties without taking the oath and, unless a court decision is reached, the government cannot call for a by-election. Just as well; why mourn the loss of two members who have shown themselves to be the worst of politicians, even by politicians’ low standards? We deserve better.
Ronny Tong Ka-wah, SC, a former legislator, is convenor of the think tank Path of Democracy