Going to court over oaths an unwise move
For Hong Kong’s Chief Executive Leung Chun-ying to try and enlist the judiciary in an attempt to force the legislature to follow his will, concerning who may be a member of the Legislative Council, is a constitutionally unprecedented and unwise action.
It’s also legally unsound. The Legislative Council Ordinance defines a member as someone who is elected, states they are deemed to have accepted office unless they “non-accept” in writing within seven days after election, and lists the various ways they may stop being a member (die, resign, go mad, get right of abode elsewhere).
In addition, the Legco president may declare a member not qualified for reasons itemised in the Basic Law, which include censure by a two-thirds majority of Legco (Article 79).
Article 104 of the Basic Law requires an oath that Legco members “swear to uphold the Basic Law” and “swear allegiance to the Hong Kong SAR of the People’s Republic of China”.
The oath is a historical and symbolical act, not a legal precondition to becoming a Legco member. As Article 104 states: “Members … must swear” – they are already members. It is up to Legco, via its president, to manage its membership, including their oaths, not the executive.
And nowhere is being a full member of Legco made conditional on attitudes, manners, clothing or banners that an elected member may adopt.