Offensive conduct by lawmakers-elect illegal
Kacee Ting Wong, citing dependable observations by Justice Hartmann, writes that it is perfectly justified for Leung and Yau to be expelled from LegCo
The Legislative Council swearingin ceremony has created a lot of controversy recently. The two disgraced separatist lawmakers-elect — Sixtus Leung Chung-hang and Yau Wai-ching — were widely criticized for altering the oath’s text to insult the country and also displaying separatism banners. The public had expressed great concern on whether or not these two lawmakers-elect’s behavior violated the legal requirements, and if so, whether it is legal to strip from them their LegCo seats. So let me put this straight.
First, when legislators-elect officially begin terms in office, they are legally obliged to take the LegCo oath, one by one, to voice their pledge to uphold the Basic Law and swear allegiance to the Hong Kong SAR of the People’s Republic of China. The legality and necessity of taking the statutory oath are clearly directed by the Basic Law’s Article 104 which stipulates that “When assuming office … members of the … Legislative Council … must, in accordance with law, swear to uphold the Basic Law … and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China”.
On local level, in the case of Leung Kwok Hung and Legislative Council Secretariat HCAL 112 of 2004, unreported, Oct 5, 2004, Justice Michael Hartmann reiterated that the taking of the oath that accords with the above requirements is a mandatory constitutional obligation imposed on all members-elect of LegCo.
The statutory oath has an aspect of uniformity also. Its actual form to be taken by LegCo members-elect is a 77-word prescribed form under section 16(d) of the Oaths and Declarations Ordinance, Cap 11 (Laws of Hong Kong), which is set out in schedule 2.
In particular, section 21 of the ordinance provides that LegCo councilor “… who declines or neglects to take an oath duly requested which he is required to take by this part, shall (a) if he has already entered on his office, vacate it, and (b) if he has not entered on his office, be disqualified from entering on it.”
Thus, no matter whether Yau and Leung are legislators-elect or already in-office, they can be expelled from LegCo if their oaths fall foul of legal requirements.
Another potential moot point in this incoming judicial review is whether their vile oaths come under the legal requirements of “declines or neglects to take an oath” according the above stated laws. Their rejection and neglect in taking the proper oath is self-evident and was recorded on TV news. These all stand as strong arguments for consideration by a judge.
Meanwhile, the display of banners opposed the sovereignty of China over Hong Kong which is also in total defiance of Article 1 of the Basic Law. In addition, the insertion of bad language during the swearing-in ceremony also constitutes circumstantial evidence in support of this observation.
For another thing, as I have said above, the legal requirements of taking statutory oath has an element of uniformity. Non-compliance of this legal requirement will render the oath-maker liable to expulsion from LegCo. The basis for this legal rule is Article 79(7) of the Basic Law, by which it imposes a positive duty on all LegCo members to take the prescribed oath, failing which the fouling member is liable for expulsion from office.
In the words of Justice Hartmann, this duty is a uniform liability which is only manageable in a rational way if there is uniformity in the form of the oaths. Each member knows what he or she has sworn to and what all the other members have sworn to.
Stemming from oath having uniformity is the integrity of the legislature. His Lordship provided a convenient illustration in that the preamble to
The display of banners opposed the sovereignty of China over Hong Kong which is also in total defiance of Article 1 of the Basic Law. In addition, the insertion of bad language during the swearing-in ceremony also constitutes circumstantial evidence in support of this observation.”
the Parliamentary Oaths Act 1866 reads: “Whereas it is expedient that one uniform oath should be taken by members of both houses of parliament on taking their seats in every parliament …” So, the results of not taking the oath prescribed by the law are drastic. It is a pity that these naive newlyelected lawmakers failed to appreciate this.
Moreover, in national level, the oath-taking saga is wholly misconceived about Chinese citizen’s identification on the part of Leung and Yau.
In accordance with Article 54 of the Constitution of the PRC, it is the duty of each and every Chinese citizen to safeguard the honor and interests of the motherland. A person must not commit acts detrimental to the motherland. In this regard they had also violated the country’s fundamental law.
To conclude, it is apparent that the rejected oaths of Leung and Yau are not consistent with the requirements under Article 104 of the Basic Law. The amended oath did not give full constitutional effect to the legislative intent as expressed in Article 1 of the Basic Law, as such, they are tainted by illegality.
On the basis of the authoritative judgment of Justice Hartmann (serving non-permanent judge of the Hong Kong Court of Final Appeal), the oaths of Yau and Leung are devoid of the necessity, legality and constitutionality aspects of the full text of the oath. It is therefore legally sound to expel them from the LegCo.