Legco brouhaha reveals dark side of the rule of law in Hong Kong
The storm of indignation at the ‘insulting’ oath-taking by two lawmakers was a massive overreaction – ignoring them would have made more sense
Numerous irregularities at the start of the 2016 Legco session have brought the role of law in politics to the fore.
Are the ousted Youngspiration lawmakers allowed to modify the swearing-in oath? Does the Legco president need to show written proof that he renounced his UK citizenship before applying for his post? Can the Legco president decide unilaterally to keep certain Legco members out of the chamber by himself?
At the heart of the present gridlock lies a Kafkaesque political environment where all parties try to use the letter of procedural law to get their own way.
Everyone has heard of the politicisation of law. The mainland’s Communist Party shapes PRC law based on their political objectives. Politics shapes Chinese law. Full stop. The reverse is happening in Hong Kong.
Advocates from the pan-dem camp cite rules giving the Legislative Council president, Andrew Leung Kwan-yuen, the authority to let Sixtus Baggio Leung Chung-hang and Yau Wai-ching retake their oaths. The Hong Kong government cites rules allowing it to challenge that decision through a judicial review. Supposedly the two had contravened the Basic Law.
How can words spoken by politicians contravene Hong Kong’s fundamental law? Does anyone doubt these politicians uphold the Basic Law or hold allegiance to Hong Kong (as stipulated in the Basic Law’s article 104) as they see it?
Why not just ignore these members’ oaths as the usual, useless political speech it is. Ignoring this behaviour is better than tying up the chamber over trifles.
What is the objective of the law? To remove democratically elected lawmakers over technicalities? What is wrong with the Basic Law’s article 79.7, which allows for censuring the Youngspiration pair by a two-thirds Legco vote?
Hong Kong has become too bedazzled by the rule of law to focus on the goals of such rule. Supposedly, Andrew Leung violated article 71 of the Basic Law by failing to declare and renounce his British passport. Yet, where exactly is the harm?
A simple thought experiment can put the recent imbroglio into perspective. Would the Texas legislature react similarly if two of its representatives vowed fidelity to the “country of Texas” and pronounced America as Yankee-land? Who cares? The facts remain the same. Texas remains part of the US, just as Hong Kong to China. No speech can change that.
Yet, banning the Youngspiration pair would have real consequences. The Legco president’s lawyer may have argued in court last week that banning them from retaking the oath would “seriously deprive them of constitutional rights”. He was wrong. Banning them would deprive us of our constitutional rights. When we move from words into actions, things change.
China’s overzealous reaction turned these children’s trifling speech into an affront to China’s own dignity and “face”. The best way now to save face lies in ignoring them.
I do not know which side is right or wrong. But people in both camps should keep two timeless legal maxims in mind. Sticks and stones may break our bones, words will never hurt us. No harm, no foul.
Dr Bryane Michael is a senior fellow with the University of Hong Kong’s Asian Institute for International Financial Law