Wednesday, July 19, 2017

HKU Law Faculty Members Comment on the Disqualification of Four Hong Kong Legislators

Cheng Chan Lan Yue Professor in Constitutional Law, Professor Albert Chen, write an article published in Ming Pao on 18 July 2017 calling for discretionary treatment on issues of legal costs and disgorgement of salaries and benefits in respect of the four legislators who were recently disqualified for failing properly to take their oath of office.

On 14 July, the Court of First Instance of the High Court of Hong Kong decided the case brought by the government questioning the qualification of four members of the Legislative Council (LegCo), for they declining or neglecting to take the LegCo Oath. The court ruled that the four members failed to meet the statutory requirements of the oath taking before assume office of the LegCo.
     It is noteworthy that, although this case and Leung and Yau’s case in last year are both about the oath taking and disqualification of membership, the legal bases the court rules upon in the two proceedings are not the same.
     In the case of Leung and Yau, the Honourable Justice Au, Judge of the Court of First Instance of the High Court, points out that even if the court does not refer to the Interpretation made by the Standing Committee of the National People's Congress in November last year (NPCSC Interpretation), the two members should still be disqualified for their denial of oath according to Hong Kong local laws (such as the Oaths and Declarations Ordinance and the relevant provisions of the Basic Law). The main issue is not whether the words and deeds of the two members constitute a denial of oath, the focus of the debate lies in whether the court has the power and should intervene in the "internal business" of the LegCo or the decision made by the President of the LegCo is amenable to judicial review.
     However, in the present judgment concerning the four LegCo members, the same Honourable Justice Au, grounds the ruling on the NPCSC Interpretation and precedents of other Hong Kong courts, as well as the Basic Law and local ordinance. From the judgment, we can see that the NPCSC Interpretation made in last November is one of the important legal bases of the decision. The ruling has also dealt with the legal issues about the retrospective effect of the NPCSC Interpretation and when should it come into force... Click here to read the article in full in Chinese.  Professor Chen was also interviewed in Cantonese on Cable TV news, click here to view.

Kimmy Chung, Ng Kang-chung, Ajay Singh
South China Morning Post
18 July 2017
Legal experts warn that more Hong Kong pan-democratic lawmakers face the same fate as their six colleagues barred over improper oath-taking in the Legislative Council. One legal scholar has even proposed allowing a judge to ­administer oath-taking to avoid similar troubles in future.  At least nine more lawmakers who shouted political slogans or tore up documents during their swearing-in last October may be in a “highly risky” position.
     These lawmakers are currently facing, or have faced judicial reviews: Raymond Chan Chi-chuen of People Power, Cheng Chung-tai of Civic Passion, non-affiliated localist Shiu Ka-chun, social activist Eddie Chu Hoi-dick, Democrats Andrew Wan Siu-kin, Lam Cheuk-ting, Helena Wong Pik-wan, and Roy Kwong Chun-yu, and the Labour Party’s Dr Fernando Cheung Chiu-hung.
     Professor Simon Young, of the faculty of law at the University of Hong Kong, said: “All of [the nine pan-democrats] are liable to be unseated because their oath-taking lacked sufficient ­sincerity or solemnity or was ­otherwise defective in form.
     “This is the consequence of the ­judgment. We must now seriously ­consider whether the system should be reformed such that High Court judges will administer oaths directly.”
     However, Albert Chen Hung-yee, a member of the Basic Law Committee, did not believe a judge was needed for such a task...  Click here to read the full article.

Chris Lau, Julia Hollingsworth, Tony Cheung
South China Morning Post
15 July 2017
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
     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... Click here to read the full article.

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