Expert: Opposition defied consequences of altered oaths

The High Court disqualified the four opposition lawmakers on July 14 for their failure to take Legislative Council oaths properly, explained Albert Chen Hung-yee, a law professor from the University of Hong Kong.

Following an interpretation of Article 104, the relevant Basic Law provision, by the National People's Congress Standing Committee (NPCSC) regarding oaths by public officers, Chen said the court could do nothing but unseat them. This is because the interpretation clearly spelt out examples of not taking oaths sincerely and solemnly.

"In the past, LegCo oaths were administered rather loosely, with some people being let off," the academic, who is also a member of the Hong Kong Special Administrative Region Basic Law Committee, explained. "This made the 'pan-democrats' think that the consequences would not be severe and they would at least be given the chance to re-take the oath.

"Yet the interpretation of Article 104 by NPCSC stipulates second chances shall not be given, while the local enactment Oaths and Declarations Ordinance has also an implied meaning that there is no second chance. The opposition was totally caught, unprepared and unexpected."

The four - Leung Kwok-hung, Nathan Law Kwun-chung, Yiu Chung-yim and Lau Siu-lai - also allegedly committed contempt of court; this occurred after they were being escorted by several opposition lawmakers in an attempt to break into the conference room where Finance Committee meetings were in progress on July 14 and 15. But security guards stopped them.

"It was their emotional reaction to protest the court ruling," Chen said. "I am unsure if this amounted to contempt of court, which generally refers to more direct disobedience to court rulings such as obstructing officers who were empowered by the court to clear the occupied zones in Mong Kok."

While leave for final appeal of Sixtus Leung Chung-hang and Yau Wai-ching, who were disqualified last year after they made a mockery of their oaths by adding "pro-independence" elements and insulting the Chinese nation, will be heard at the end of this month, Chen is not sure the four legislators disqualified this year will appeal.

He said: "Some may not appeal because they do not see a realistic chance of overturning the original ruling and are scared by the huge legal costs. Instead, they will eye by-elections since no existing legislation can bar the disqualified lawmakers from joining by-elections.

"Of course they need to pass the hurdle of the confirmation form, which requires potential candidates to declare they uphold the Basic Law and pledge allegiance to the Hong Kong SAR. In last year's LegCo election, most people signed the form but some did not.

"Edward Leung Tin-kei from a pro-independence group signed the form, yet his subsequent words and conduct were deemed in violation of the requirements and he was banned. If people sign the form, say and do nothing wrong during the campaign, it will be difficult to exclude them from the election."

According to LegCo President Andrew Leung Kwan-yuen, the LegCo Commission will hold a meeting at the end of this month on whether to recover remuneration and allowances already paid to the disqualified four. The LegCo Commission will seek legal advice and handle the issue carefully, the president said. This is due to the large amount of public funds at stake.

Chen said: "In my personal opinion, the four need not repay because they were given the chance to re-take the oath by the LegCo president and had fulfilled their duties as lawmakers since October 2016. Again, the court has not said LegCo shall recover money from them."

joseph@chinadailyhk.com

(HK Edition 08/02/2017 page4)