Legislative Council elections 2016

Explained: walkouts and oath-taking controversy at start of Legco term

As the third attempt to start business in the newly elected Legislative Council, Wednesday’s meeting could still lead to another standoff between the localists and pro-establishment lawmakers.

PUBLISHED : Wednesday, 26 October, 2016, 8:34am
UPDATED : Wednesday, 30 November, 2016, 11:00am

What’s happened in the past two weeks?

On October 12 at the opening of the new Legco term, lawmakers took centre stage and declared the standard oath to be formally inducted to the chamber.

Youngspiration’s Sixtus Baggio Leung Chung-hang and Yau Wai-ching decided to alter their oaths and instead pledged allegiance to “the Hong Kong nation”, referring to the sovereign state as “Chee-na”, a variation of the derogatory “Shina” used by Japan for China during the second world war. They also produced a banner that read “Hong Kong is not China”. They had their oaths declared invalid by Legco secretary-general Andrew Leung Kwan-yuen.

Hong Kong Legco president makes U-turn on oath-taking by localists

Leung later said he would allow them to re-take their oaths properly if they wrote to him to do so. But a day before the second meeting on October 19, the government filed an emergency lawsuit arguing that the pair be disqualified immediately. The court struck down a request for an injunction but allowed the judicial review case to be heard on November 3 over the Legco president’s decision to allow a second chance for them.

Outside the chamber, voices criticising the pair grew louder as groups demanded they issue an apology for insulting China and Chinese people with their derogatory remarks. The pair dug their heels in, insisting they had done nothing wrong.

On the day of the second meeting however, pro-establishment lawmakers staged a walkout, causing the meeting to be aborted as a result of a lack of quorum.

What will likely happen at the third meeting on Wednesday?

Andrew Leung yesterday decided to delay the swearing-in of the two localists, making a de facto U-turn on his earlier agreement for the two to take a fresh oath. The reversal took place after pro-establishment lawmakers threatened to walk out again to protest any move to allow the pair to swear in.

Leung and Yau have vowed to force their way into the meeting nonetheless, saying the president has no right to delay their oath-taking.

What are the legal arguments for continuing with or suspending their oath-taking?

The Court of First Instance has ruled against the government’s request for an injunction of the oath-taking, meaning there is no immediate legal ground for suspending the process. Lawyers for the Legco president argued in court that to refuse them from taking a fresh oath could deprive democratically elected lawmakers of their constitutional duties, constituting “disastrous” results once the move faced a legal challenge.

But at the hearing, Johnny Mok Shiu-luen SC, representing the government argued that the Basic Law provision on oath-taking in Article 104 was intended to put emphasis on China’s sovereignty.

“These people are sending a message to the world and also to the public that we can function as a member of Legco without pledging allegiance to the HKSAR of the People’s Republic of China,” he said. To allow them to take the oath again, Mok added, would “create a state of confusion as to what is the meaning of the further acts undertaken”, which could include initiating bills or giving speeches in Legco.

Legco president Leung has cited Article 72 of the Basic Law which allows the Legco president to decide on the agenda. He is using this Article to reshuffle the agenda and defer the oath-taking to a later stage. This is so, even though according to Rule 18 of Legco’s rules of procedures, oath-taking is designated as the first priority of the order of Legco’s business.

Earlier, before Leung decided to defer the oath-taking, pro-government lawmakers were mulling the possibility of invoking Rule 91, by which a lawmaker can, with the president’s consent, table a motion suspending a Rule (in this case, Rule 18), so the president does not need to deal with the duo’s oath first.