Decision’s impact is both legal and political
A court’s decision to disqualify four democrat legislators for failing to lawfully take their oaths has provided clarity in an area which has been the subject of much debate. But together with a similar case last year, it has also resulted in a shift in political power
A court’s decision to disqualify four democrat legislators yesterday for failing to lawfully take their oaths has profound legal and political implications. The judge has adopted a strict interpretation of what is required by law when such oaths are taken. It is a judgment which provides clarity in an area which has been the subject of much debate. But the consequences of this case go far beyond the legal issues. The ruling followed the exclusion of two other democrat lawmakers by the same judge on similar grounds in November. It means the pro-democracy camp loses its crucial majority in geographical constituency seats in the Legislative Council. In practice, it no longer has a veto over proposals put forward by pro-establishment lawmakers. The two court cases, brought by the government and supported by Beijing’s interpretation of the Basic Law last year, have resulted in a shift in political power.
This is not the end of the story, however. Both cases are heading for appeals in higher courts. Ultimately, a decision will be needed from the Court of Final Appeal. It is difficult to see how by-elections can be held to fill the vacated seats, until the legal disputes have been resolved. The courts should expedite the appeal proceedings. Yesterday’s judgment by Mr Justice Thomas Au Hing-cheung should leave lawmakers in no doubt as to what is expected of them when they take their oaths. They must do so solemnly and sincerely. There is no room for stunts, theatrics, or for adding words of their own before, during, or after the taking of the oath. This is welcome, as the taking of the oaths is an important constitutional step and should occur in a dignified fashion. The four lawmakers concerned will, however, feel aggrieved that such conduct has been permitted in the past and, in the case of each of them, accepted by Legco this time. The courts have taken a different view. The judge relied on Beijing’s interpretation of the Basic Law, which he said he must follow, as well as Hong Kong legislation and common law authorities. He may have reached the same conclusion without Beijing’s intervention. It is to be hoped that the judiciary will be trusted to handle such matters on its own in future, as this helps maintain confidence in Hong Kong’s rule of law .
This affair began with offensive remarks by pro-independence lawmakers when taking their oaths. They should reflect on the trouble they have caused. Six elected lawmakers have been barred. Legco has been pitched against the government in court and Beijing has issued a controversial interpretation, which also laid down clearer rules that lawmakers must follow. There is now a need for restraint on all sides. The sooner the appeal process is completed and – if necessary – by-elections held, the better.