Hong Kong lawmaker disqualification ruling ‘opens huge floodgate’, lawyers say
Court judgment ‘changes rules of the game’ in the Legislative Council and could have a chilling effect on lawmakers in future, legal experts say
The far-reaching judgment disqualifying four lawmakers from Hong Kong’s legislature strongly leaned on Beijing’s interpretation of the oath-taking rules and has “changed the rules of the game” in the Legislative Council, lawyers said.
In unseating the lawmakers on Friday, Mr Justice Thomas Au Hing-cheung extended the scope of the rules governing swearing-in ceremonies to include statements made before and after legislators’ oaths, meaning their pledges could now be deemed invalid even if they read the oath itself correctly.
Previously, the rules had only been applied to the oath itself – not statements made either side of it, University of Hong Kong principal law lecturer Eric Cheung Tat-ming said.
“It changes the rules of the game,” he said. “It is quite a ridiculous interpretation.”
Au’s 119-page judgment ruled that the four lawmakers should be disqualified from their seats.
The oaths taken by Nathan Law Kwun-chung, “Long Hair” Leung Kwok-hung, Lau Siu-lai and Edward Yiu Chung-yim last October were invalid by virtue of the fact they added words, included additional statements before and after the oath, or, in the case of Lau, took such long pauses between each word that the oath lost its meaning, Au found.
The disqualification of the four comes after two others elected to Legco last September were met with a similar verdict on their oaths. Elected lawmakers Sixtus Baggio Leung Chung-hang and Yau Wai-ching were disqualified last year for using derogatory language about China when taking their pledges.
In November, the National People’s Congress Standing Committee in Beijing, the nation’s top legislature, released a controversial interpretation setting out oath-taking rules for Legislative Council members, including that they must be taken “sincerely and solemnly”, and must not include words which don’t accord with the meaning of the oath.
Au yesterday ruled that because the legality of the oaths should be assessed objectively, there was no need to take into account the actual intent of the four lawmakers. He said the validity of the oaths was solely a question of law – not a political one.
The court was also not bound by a decision taken by the Legislative Council’s administrator at the time the oaths were taken about whether they were valid or not, he said.
Lawyers for the disqualified lawmakers argued for a stay of proceedings, claiming the case against them was politically motivated. But Au dismissed the application, saying it was “speculative at best”.
Even if the case had been motivated by some other purpose, it wouldn’t be an abuse of process, as the four deserved to be disqualified under law, Au said.
Cheung said that without the NPC Standing Committee interpretation, the judge would not have reached such a conclusion, which he said had gone even further than Beijing intended.
“The four were not advocating independence, which was the main reason triggering Beijing’s interpretation of the Basic Law,” Cheung said.
“Before the interpretation, I don’t think anyone would have said many of the oaths in the grey area amounted to neglecting [the rules].
“Lawmakers were, at most, expressing their political demands – all the while fully expecting their oaths would not fit the requirements. But if they did not, they would just do the oaths again, properly.”
Progressive Lawyers Group convener Kevin Yam Kin-fung also said the judgment was far-reaching. He said a lawmaker could now even be held accountable for holding an umbrella while taking an oath.
“It opens a huge floodgate,” he said, and could have a chilling effect on lawmakers in future.
He said the judgment showed the “power of the interpretation”, the effects of which were wider than common law principles would have allowed had the judgment not been handed down by Beijing.
Ronny Tong Ka-wah, an ex-legislator and former chairman of the Bar Association, praised the ruling however, saying it set out “clear guidelines and standards on oath taking”.
“While the result could be seen as drastic, I don’t think any lawmaker will be taking their oath arbitrarily in the future,” he said.
Tong added that he disagreed with the suggestion that the ruling had overruled the decisions of voters.
“Voters’ support is not the only thing you need to become a lawmaker,” he said. “You still have to take your oath according to the legal requirements.”