Legislative Council of Hong Kong

On Legco, it’s vital the court is allowed to rule independently

All three branches of government – executive, legislative and judiciary – are now embroiled in a row that could invite interference from Beijing

PUBLISHED : Thursday, 20 October, 2016, 4:19am
UPDATED : Thursday, 20 October, 2016, 4:19am

It is regrettable that the oath-taking fiasco involving two young, pro-independence lawmakers has escalated into an unprecedented legal battle between the executive and legislative branches. This has not only further undermined the already-strained working relationship between our executive-led government and the Legislative Council, the judiciary has also been dragged into the row. Worse still, Legco’s work could come to a standstill pending a court decision. So high are the stakes now that it is important that the court be allowed to rule according to the law, free from pressure and influence.

Hong Kong legal battle over lawmakers’ oath-taking goes to the heart of city’s unique constitutional status

The administration’s move to take the Legco president, Andrew Leung Kwan-yuen, to court is as controversial as it is provocative. No sooner had Leung decided on Tuesday morning to give newly elected lawmakers Sixtus Baggio Leung Chung-hang and Yau Wai-ching a second chance to read their oaths than the administration filled a judicial review over the decision. While the administration won the bid for a full hearing on the decision early next month, the court rejected an interim injunction to bar the duo from retaking their oaths. Yesterday, however, pro-government lawmakers staged a walkout, effectively stopping the pair from retaking their oaths because of a lack of quorum.

The government must have considered the consequences before taking such a step. Legally, the two lawmakers last week failed to swear in as stipulated under the Basic Law by adding offensive words to their oaths. More importantly, Beijing cannot tolerate the advocacy of independence, let alone allow pro-independence figures in the establishment. As the constitutional head of the city, the chief executive may see a case to take action.

Legco president goes from villain to accidental hero in one week

That said, the legal challenge has serious constitutional implications. The judiciary has previously been wary of interfering with Legco’s decisions, referring to the principle of separation of powers. Separately, the Basic Law has clear mechanisms to disqualify members for misconduct, sickness, breach of oath and other reasons. Whether the court should heed the demand to invalidate democratically elected individuals before they properly assume office is therefore debatable. At least two other judicial reviews over the candidature of pro-independence hopefuls are pending in court. The latest battle has raised the stakes even higher. If the government wins, two by-elections will follow, which may create more uncertainty. If it loses, the prospect of Beijing stepping in with an interpretation of the Basic Law cannot be ruled out.

The matter is now for the court to decide. It is imperative that the case be handled in accordance with the law.