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Legislative Council oath-taking saga

Hong Kong law on oaths must change before four legislators can be unseated, court told

Requirement for a solemn and sincere swearing-in emerged only after Beijing’s interpretation of the city’s mini-constitution, lawyer argues

PUBLISHED : Thursday, 02 March, 2017, 11:17pm
UPDATED : Friday, 03 March, 2017, 9:51am

Hong Kong courts have no power to disqualify lawmakers for making improper oaths unless the relevant laws are amended to accommodate Beijing’s interpretation of the Basic Law, a court heard on Thursday.

The argument emerged in the government’s challenge to unseat four pro-democracy lawmakers as defence counsel Martin Lee Chu-ming SC said the requirement for a solemn and sincere swearing-in emerged only after the interpretation of the city’s mini-constitution last November.

But lawmakers could only be disqualified on such grounds if they were stipulated in the Oaths and Declarations Ordinance, he said.

Professor Johannes Chan Man-mun SC further warned it would be dangerous to take the interpretation as a context in considering the present case as that would create a “back door” to admit statements made by a foreign body into the Hong Kong system.

“The fundamental principle of ‘one country, two systems’ is the laws of two systems are clearly separated,” he told High Court judge Mr Justice Thomas Au Hing-cheung.

The case centres on oaths taken in the Legislative Council by university professor Edward Yiu Chung-yim, former Occupy student leader Nathan Law Kwun-chung, lecturer Lau Siu-lai, and veteran activist “Long Hair” Leung Kwok-hung on October 12 last year.

Court asked to disqualify four Hong Kong lawmakers for ‘theatrical’ oaths carrying political messages

The High Court earlier disqualified pro-independence pair Sixtus Baggio Leung Chung-hang and Yau Wai-ching, of the group Youngspiration, as they had “declined” to take their oaths by pledging allegiance to the “Hong Kong nation” and insulting China at their swearing-in ceremony.

The government now accused the four of refusing to take their oaths by intentionally failing to swear solemnly and sincerely, and of altering the form and substance of the prescribed oaths by adding political messages and staging “theatrical performances”.

But Chan, representing Lau, said their conduct could not be considered as a refusal when there were no formal requirements on the manner of oath-taking in the first place.

“At the end of the day we are dealing with questions of whether the conduct has departed from acceptable norms of behaviour,” he said.

Factors to be considered include Legco’s practice and background as the most political institution in Hong Kong, and due weight should be given to rulings made by the Legco president and clerk, who are most familiar with the institution’s traditions and values, to accept their oaths as valid.

Your lordship simply has no power to disqualify these legislators
Martin Lee Chu-ming, defence lawyer

Chan argued that oaths had historically carried a political role and its solemnity should not preclude the conveying of other messages when they did not contaminate the oath that followed.

He also noted that elections could lose their meaning if candidates returned by the people could be removed in the absence of “clear and unambiguous criteria” on what constituted a refusal to be sworn in, which he said was an “extremely serious penalty”.

Philip Dykes SC, defending Law, further pointed out that other lawmakers, such as Raymond Chan Chi-chuen and Helena Wong Pik-wan had similarly added words at the time without having to face the court.

He questioned if there was an “abuse of process” on the government’s part to instigate the challenge for political causes when there was “no good reason” why the four had acted so significantly different from others that it amounted to a refusal to take the oath.

With “the government attacking” individual lawmakers while the president was absent from court to defend Legco procedures, Lee said the judiciary played an important role.

“You are the only arbiter. You can do justice to both sides,” he told the judge on Leung’s behalf. “The proper way to interpretation is to amend the law.”

Until then, Lee said: “Your lordship simply has no power to disqualify these legislators.”

The hearing continues.