Paul Yeung

Says the law­mak­ers’ ax­ing was a le­gal, not po­lit­i­cal, is­sue; its out­come will be an end to the­atrics upon swear­ing-in

China Daily (Hong Kong) - - COMMENT -

No one can beat the rap if he/ she vi­o­lates any law in Hong Kong, a so­ci­ety that trea­sures the prin­ci­ple of rule of law. The dis­qual­i­fi­ca­tion of four leg­is­la­tors was un­doubt­edly a le­gal is­sue that would even­tu­ally be set­tled by the court. How­ever, some politi­cians are try­ing to por­tray this as a po­lit­i­cal is­sue and pro­mot­ing spec­u­la­tions about the “po­lit­i­cal mo­tive” be­hind the dis­qual­i­fi­ca­tion.

It is be­cause of this logic that the op­po­si­tion camp has taken some po­lit­i­cal moves. For ex­am­ple, some mem­bers of the op­po­si­tion camp have floated the weird idea of a “trade-off ”: The new ad­min­is­tra­tion, led by Chief Ex­ec­u­tive Carrie Lam Cheng Yuet-ngor, would com­pro­mise on the dis­qual­i­fi­ca­tion is­sue in ex­change for their con­sent to im­prove ties with the ad­min­is­tra­tion. Af­ter an in­ter­nal meet­ing of the op­po­si­tion camp, James To Kun-sun even said: “If the gov­ern­ment is not de­ter­mined to un­tie the knots, there is no way for the pan­democrats to main­tain a nor­mal re­la­tion­ship with the gov­ern­ment, and no way for (the Leg­isla­tive Coun­cil) to run like the busi­ness as usual.” This kind of “trade off ” ob­vi­ously works against the prin­ci­ple of rule of law, one of Hong Kong’s core val­ues the op­po­si­tion camp is fond of men­tion­ing. Be­sides shoot­ing them­selves in the foot, the op­po­si­tion leg­is­la­tors even hi­jacked the ed­u­ca­tion fund­ing pro­posal in the fi­nal meet­ing of the Fi­nance Com­mit­tee last Wed­nes­day and left most of the other fund­ing re­quests, in­clud­ing pay rises for 170,000 civil ser­vants and pub­lic works pro­grams, in the queue for the next LegCo ses­sion in Oc­to­ber.

A le­gal is­sue has been highly politi­cized by the op­po­si­tion camp, with the rule of law be­ing threat­ened. We can ex­pect that those who try to politi­cize this is­sue will face po­lit­i­cal con­se­quence in the com­ing elec­tions. The au­thor is re­search of­fi­cer of the One Coun­try Two Sys­tems Re­search In­sti­tute.

The po­lit­i­cal ac­tions of the op­po­si­tion camp were driven by mis­guided logic and were in­tended to con­ceal the true po­lit­i­cal im­pli­ca­tion of the dis­qual­i­fi­ca­tion con­tro­versy. If we look into the back­ground of the dis­qual­i­fi­ca­tion, it is not hard to re­al­ize that it is not an is­sue of po­lit­i­cal free­dom, but an is­sue of po­lit­i­cal al­le­giance. Ac­cord­ing to the Ba­sic Law, the Hong Kong Spe­cial Ad­min­is­tra­tive Re­gion is an in­alien­able part of China. As part of the SAR’s gov­er­nance struc­ture, all mem­bers of LegCo must abide by this fun­da­men­tal prin­ci­ple. There­fore, the Ba­sic Law pro­vi­sion on oath-tak­ing in Ar­ti­cle 104 was in­tended to em­pha­size China’s sovereignty over Hong Kong.

“High de­gree of au­ton­omy” and “Hong Kong peo­ple ad­min­is­ter- ing Hong Kong” are es­sen­tial to the suc­cess­ful prac­tice of the “one coun­try, two sys­tems” since Hong Kong’s re­turn to China. There is an un­der­ly­ing prin­ci­ple: The Hong Kong peo­ple who ad­min­is­ter Hong Kong must be “pa­tri­ots”, ac­cord­ing to late leader Deng Xiaop­ing’s design. The in­ter­pre­ta­tion of Ar­ti­cle 104, which ap­plies to oath-tak­ing by pub­lic of­fi­cers in­clud­ing prin­ci­pal of­fi­cials, law­mak­ers and judges, states that up­hold­ing the Ba­sic Law and pledg­ing al­le­giance to Hong Kong as part of China are the le­gal re­quire­ments for run­ning for and tak­ing up pub­lic of­fice. In po­lit­i­cal re­al­ity, this is also a touch­stone for “pa­tri­ots”. That’s why the Na­tional Peo­ple’s Congress Stand­ing Com­mit­tee had to pro­vide a clear cri­te­rion, stat­ing “an oath-taker must take the oath sin­cerely and solemnly, and must ac­cu­rately, com­pletely and solemnly read out the oath pre­scribed by law”. Ac­cord­ing to the re­cent High Court judg­ment, the amended oath of the leg­is­la­tors­e­lect in ques­tion re­vealed they did not be­lieve in the oath.

The oath-tak­ing is­sue is a con­sti­tu­tional and le­gal mat­ter that must be re­solved ac­cord­ing to law and clar­i­fied. The pub­lic needs to study the lat­est judg­ment care­fully, es­pe­cially the part con­cern­ing po­lit­i­cal al­le­giance. The op­po­si­tion camp, in­clud­ing the dis­qual­i­fied leg­is­la­tors-elect, is plan­ning to par­tic­i­pate in the by-elec­tion. The High Court’s dis­qual­i­fi­ca­tion rul­ing re­minds the as­pi­rants: They must take the oath sin­cerely and solemnly and ad­mit their ac­count­abil­ity to the coun­try. Just as Al­bert Chen Hung-yee, a mem­ber of the Ba­sic Law Com­mit­tee, said: “Af­ter six law­mak­ers have been dis­qual­i­fied, peo­ple now know well what to do when they take the oath… I don’t think there will be any­one up to an­tics any­more dur­ing oath-tak­ing, un­less he or she does not want to be­come a law­maker.” This is the most sig­nif­i­cant and true po­lit­i­cal im­pli­ca­tion of the dis­qual­i­fi­ca­tion saga.

The oath-tak­ing is­sue is a con­sti­tu­tional and le­gal mat­ter that must be re­solved ac­cord­ing to law and clar­i­fied. The pub­lic needs to study the lat­est judg­ment care­fully, es­pe­cially the part con­cern­ing po­lit­i­cal al­le­giance.

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