Legislative Council of Hong Kong

Hong Kong legal experts split over court’s ruling in oath controversy

Lawyers express concern over the lack of clear reasoning for the disqualification of two Youngspiration lawmakers

PUBLISHED : Wednesday, 16 November, 2016, 11:08pm
UPDATED : Wednesday, 30 November, 2016, 10:57am

The disqualification of two democratically elected lawmakers over an oath-taking controversy has prompted concern from the legal community over the lack of clarification surrounding the constitutional foundation for the ruling.

Legal experts are awaiting further reasoning for Tuesday’s High Court ruling, which found Sixtus Baggio Leung Chung-hang and Yau Wai-ching had “declined” to take the Legislative Council oath and swear allegiance Hong Kong as part of China,

Former legal sector legislator Margaret Ng Ngoi-yee said it was the first time the court had directly ­disqualified duly elected lawmakers or overturned a decision of the Legco president.

Watch: Two Youngspiration lawmakers react to court judgment

“The decisions may be or may not be right, but we need more rationale. I hope the upper courts can give us very clear reasons for their ­decisions in the upcoming appeal by the duo,” Ng said Wednesday.

Johannes Chan Man-mun, former dean of law at the University of Hong Kong, said the court had “diminished the constitutional significance of Legco”.

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“The court treated Legco as if it is just a statutory body... It didn’t say why it can remove a democratically elected lawmaker in the way it ­disqualifies a public officer,” he said.

He pointed to Article 79 of the Basic Law, the city’s mini-constitution, which states that a two-thirds majority in Legco is required to ­remove a lawmaker.

It didn’t say why it can remove a democratically elected lawmaker in the way it ­disqualifies a public officer
Johannes Chan Man-mun

“If the Basic Law has made it so difficult to remove someone for breach of oath, I can’t see why the court can find it so easy to kick out someone who declines or neglects to take the oath – both are serious ­matters.”

Chan said the court was yet to clearly define what constituted “internal business” of the legislature, which the court could not interfere in.

During the swearing-in ceremony on October 12, the Youngspiration pair pronounced “China” in a way that Chinese found offensive.

In deciding to remove them, Mr Justice Thomas Au Hing-cheung, ­interpreting the Oaths and Declarations Ordinance, reasoned that the pair’s manner demonstrated their intention not to faithfully recognise the importance of “one country” under “one country, two systems”.

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Martin Liao Cheung-kong, a local deputy to the National People’s ­Congress, backed the court’s ­decision, saying democratically elected lawmakers “should also be subject to the law”.

“The court should stick to the law and avoid considering political ­factors,” Liao, also a lawmaker, said.

Part of Tuesday’s controversial judgment was the finding that the chief executive had the standing to bring proceedings to lawmakers in addition to the secretary for justice.

Kevin Yam Kin-fung, convenor of the Progressive Lawyers Group, said this part of the judgment could set a dangerous precedent.

“If the court says the chief executive has the duty to implement the Basic Law and therefore he has a standing to sue, does that mean he has the power to bring proceedings on economic and land matters – basically anything – because they are all covered in the Basic Law?”