The rule used to expel Medical Association president Dr Tse Hung-hing is unconstitutional and he should be reinstated, the Justice Department has told the Medical Council in a legal opinion. But the council's president, Professor Felice Lieh Mak, said a court ruling was needed before Tse could be reinstated although the council had already accepted the regulation was a 'bad law'. Tse was expelled in July because he did not declare a HK$1,000 fine for careless driving when he ran for election as chairman of the council's ethics committee in August last year. The department's advice was tabled at a council meeting yesterday. Details were not available, but the Medical Association said earlier that the rule was a breach of Article 26 of the Basic Law, which stated that all Hong Kong residents had the right to vote and the right to stand for election. Tse filed a judicial review in late July asking the court to declare the regulation unconstitutional and to void the council's decision to disqualify his membership. The case is scheduled for November 5. The Medical Registration Ordinance states that no one should run in an election if he or she has been convicted of any offence punishable by imprisonment, which includes careless driving. But the rule applies only to elected members. Seven of the 28 council members are directly elected by about 11,000 registered doctors in the city while the others are appointed by the government and bodies such as universities and the Medical Association. Tse had reported his driving fine to the council a month before the election but omitted it from his nomination form. Lieh Mak said yesterday that the council needed a court ruling to declare the rule unconstitutional before it could reinstate Tse. 'Only the court has the power to declare the rules as unconstitutional,' she said. Some doctors have called for Lieh Mak to step down because of the expulsion, but she said that until the law was amended by the Legislative Council or declared invalid by a court the council had no choice. 'From day one, we have admitted that it is a bad law. But the Medical Council is a law-enforcement body and we have to act according to the law,' she said. Asked if the incident has damaged the council's credibility, Lieh Mak said: 'There was an oversight when Legco passed the ordinance, everybody missed it.' Tse refused to comment on the department's legal advice. 'What I can say is that I have never been bothered by this matter,' he said, adding that he would seek a chance to return to the council to speak for doctors. The council had earlier reported Tse's alleged false declaration to the police, but he said the police had dropped the case. Former Medical Association president Choi Kin demanded a formal apology from the council in expelling Tse. 'It was a big insult to the Medical Association. The council has obviously done something wrong.' The council meeting yesterday also discussed the landmark conviction of a doctor for overcharging. Ten of the 28 members have petitioned twice for a review of the case, saying the conviction will seriously affect doctors' practices. On August 28, a disciplinary panel reprimanded Dr Ip Wing-kin for imposing excessive laboratory test charges on an elderly patient in 2006 and making a financial gain as a 'rebate in disguise'. Members called for a review last month, but their request was turned down. A second petition was submitted on Monday. Lieh Mak said the council would seek new legal advice and refused to comment further as Ip is appealing.