Po Jen Yap and Eric Chan
Hong Kong Law Journal
2017, Vol. 47, Part 1, pp 1-16
Abstract: In this comment, we disagree with the Court of Appeal’s decision to disqualify two newly elected members of the Legislative Council from office. While we accept that the judiciary is empowered under Art 104 of the Basic Law to determine whether an oath taken is valid, it is our view that after the oath is judicially deemed invalid, it should be left to the President of LegCo to determine whether the lawmaker is to be denied a second chance of retaking the oath and be disqualified. First, the CA held that para 2(3) of the relevant Interpretation by the Standing Committee of the National People’s Congress “automatically disqualified [the pair of lawmakers] from assuming their offices”, but the term “automatic” or “automatically” is found nowhere in the Interpretation. The Interpretation only uses the term “forthwith”, which means “without delay”, and it would not be inconsistent with the Interpretation for the CA to punt the issue over to the President to proceed with the disqualification expeditiously. Second, reading ss 19 and 21 of the Oaths and Declarations Ordinance (Cap 11) together, we argue that a lawmaker can only be disqualified for declining to take the requisite oath if he had not taken a valid oath after a reasonable time had elapsed. Therefore, the lawmaker is not disqualified “automatically” on the first occasion where he declined to take the requisite oath. Third, the principle of non-intervention in the internal process of LegCo applies herein. Whilst the courts have jurisdiction to determine whether the President has the general power to grant or deny a newly elected LegCo member the opportunity of retaking the requisite oath after the original attempt was judicially deemed invalid, the courts will not exercise jurisdiction to determine the specific occasion or manner of exercise of this power by the President. Finally, if the Interpretation is treated as a piece of legislation instead of a judicial decision, and if Hong Kong courts were to approach this legislation using common law principles of statutory interpretation, the presumption against retrospectivity of legislation applies; and on the facts of this case, this Interpretation would not operate retrospectively to events that predated its announcement.
Supposing a crime was committed on 1 Jan, and the case was brought to court on 1 April and in due course the CFA sought an interpretation of the relevant BL article on 1 June, and an Interpretation was given on 1 Sept. If according to the authors there should not be any retrospective effect, it would imply that the Interpretation could not apply to this case which happened on 1 Jan. If so, it would defeat the purpose of seeking the Interpretation. In short, the Interpretation must have retrospective effect.ReplyDelete