Legislative Council elections 2016

Youngspiration duo remains in legislative limbo over oath-taking

Yau Wai-ching and Sixtus Baggio Leung Chung-hang may be barred from being sworn in and attending meetings of the Legislative Council, but they are officially still lawmakers, receiving a salary and entitled to an office

PUBLISHED : Wednesday, 26 October, 2016, 11:20pm
UPDATED : Wednesday, 30 November, 2016, 11:00am

Youngspiration pair Yau Wai-ching and Sixtus Baggio Leung Chung-hang may be barred from being sworn in and attending meetings of the Legislative Council, but they are officially still lawmakers, receiving a salary and entitled to an office.

They are also still allowed to submit written questions. Among Wednesday’s Legco meeting agenda items was a written question about the public records office filed by Leung.

Watch: Legco oath-taking crisis continues

“The president does not have all the power,” Leung chanted to the Legco head yesterday after he was escorted by his allies into the chamber to attend the meeting. “There are rules binding you. You can’t do whatever you like.”

Indeed, even though Andrew Leung Kwan-yuen, having deferred the swearing-in of the duo who insulted China in their first oaths, barred them from entering the chamber, the pair were still able to return to their offices upstairs.

Legco drama rages on: meeting adjourned after Hong Kong localists enter to defy oaths ban

The Legco rule of procedure the president relied on was rule No.1 which says “no member of the council shall attend a meeting or vote” until he has made an oath in accordance with the Oaths and Declarations Ordinance.

The pair are able to receive their monthly salary of HK$93,040 and allowances, a spokeswoman for the Legco Secretariat added. “This is because the government has set October 1 as the starting date of the term of office in accordance with the Legislative Council Ordinance,” she said.

The notice announcing the date was published in the Government Gazette in July.

This means the duo are able to make use of their allowances to hire assistants, set up district offices and take complaints from residents in their constituencies.

A similar arrangement exists in Britain. In 2001, as part of the Northern Ireland peace process, the UK government altered parliamentary rules to allow Sinn Fein MPs access to Westminster allowances and office space, although the republicans did not swear allegiance to the Queen in order to take their seats. But they were not entitled to the MPs’ salary.

Five MPs of the party were found in 2009 to have claimed tens of thousands of pounds as second-home allowances, which they argued was for campaigning their cause in England. There was no suggestion they had broken parliamentary rules in doing so.

In Hong Kong’s oath-taking saga, the Youngspiration duo’s fate awaits a court ruling over a judicial review sought by Leung Chun-ying’s administration, which has mounted a legal action to disqualify them. A hearing is set for November 3.

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

Backing the government, pro-Beijing lawmaker and City University law professor Priscilla Leung Mei-fun said the duo already breached the requirement of swearing allegiance to Hong Kong SAR of the People’s Republic of China under Basic Law Article 104, and therefore should be disqualified.

Horace Cheung Kwok-kwan, lawyer and vice-chairman of the Democratic Alliance for the Betterment and Progress of Hong Kong, said there is no law that says the president had a constitutional duty to let a lawmaker take the oath an unlimited number of times.

However, Benny Tai Yiu-ting questioned whether the court actually has the power to disqualify the pair.

The University of Hong Kong expert in judicial review argued that it is the legislature itself, not judges, that can do so.

In a Facebook post, the co-founder of Occupy Central referred to Article 79, which listed seven conditions under which a legislator can be disqualified. Failure to swear allegiance to the Hong Kong Special Administrative Region is not one of them, Tai noted.

The only relevant condition for the localists’ case is Article 79(7), which says a Legco member can be disqualified “when he or she is censured for misbehaviour or breach of oath by a vote of two-thirds of the members” present.

Article 104 cited by the Beijing loyalists cannot be interpreted as the eighth condition for disqualification, Tai argued.

The court can, at most, rule that whether the two localists had “misbehaved” under Article 79(7), but the court will have to leave it to the legislature to pass a two-thirds majority in order to kick them out of office, he added.

Even so, Tai argued that the duo’s inability to attend meetings or vote over motions and bills ”is a punishment proportional to their failure to complete the oath”.