Rule of law should not be black­mailed by pol­i­tics

Crit­i­cizes cries of ‘political re­pres­sion’ — even from some mem­bers of the le­gal pro­fes­sion — over the court’s de­ci­sion to dis­qual­ify four law­mak­ers

China Daily (Hong Kong) - - COMMENT - Chow Pak-chin

It goes with­out say­ing that the rule of law is the core value of Hong Kong. The un­for­tu­nate re­al­ity, how­ever, is that the rule of law is of­ten abused in cases where cer­tain in­di­vid­u­als’ vested in­ter­ests are “threat­ened”, as in the case of the oath-tak­ing saga, which has re­sulted in dis­qual­i­fi­ca­tion of four more anti-es­tab­lish­ment law­mak­ers — Law Kwun-chung, Lau Siu-lai, Yiu Chung-yim and Le­ung Kwok-hung. The hor­ror that fol­lows is the un­jus­ti­fi­ably il­log­i­cal na­ture of opin­ions given by some anti-es­tab­lish­ment law­mak­ers and, God for­bid, in­di­vid­u­als from the le­gal pro­fes­sion. And, lo and be­hold, even Car­di­nal Joseph Zen Ze-kiun felt obliged to openly rap the rul­ing, call­ing it a wan­ton dis­re­gard for the rights of the 127,000 cit­i­zens who voted for the dis­qual­i­fied law­mak­ers, as well as an act of “political op­pres­sion” by the pre­vi­ous and cur­rent ad­min­is­tra­tions.

To un­der­stand the sheer ab­sur­dity of the oath-tak­ing saga, one needs to take a look at the solem­nity en­tailed by an oath, or a vow. More than 40,000 mar­riage vows are taken by hus­bands- and wives-to-be in Hong Kong ev­ery year. In the wit­ness of the cel­e­brant, the vow-tak­ers are obliged to read the stan­dard vow, ver­ba­tim, as a pro­ce­dure to sol­em­nize their mar­riage — few would risk un­der­min­ing the in­tegrity of the oc­ca­sion by spon­ta­neous, gra­tu­itous ad­di­tion of their own state­ments. Yet, in swear­ing their dedication and loy­alty to serve the best in­ter­ests of Hong Kong, the anti-es­tab­lish­ment law­mak­ers have pulled a the­atri­cal stunt to man­i­fest their political stance through ad­di­tional word­ing in their oath, de­spite ob­vi­ously know­ing such be­hav­ior would not be con­doned.

What we have here is jus­tice be­ing served, and oath-tak­ers who de­vi­ate from stan­dard pro­to­col are duly pun­ished with dis­qual­i­fi­ca­tion. The four law­mak­ers’ fu­tile de­fense in call­ing the dis­qual­i­fi­ca­tion “political op­pres­sion” is in­fu­ri­at­ing. Now, it surely bog­gles the mind which part of the en­tire oath-tak­ing saga con­sti­tutes “op­pres­sion”: No­body pointed a gun at their heads to dis­honor their oath­tak­ing ceremony; these were 100 per­cent vol­un­tary an­tics con­ducted on their own terms, and the final rul­ing was de­liv­ered by a judge well-versed in law.

In fact, Judge Thomas Au Hingche­ung’s rul­ing was based on the Na­tional Peo­ple’s Congress Stand­ing Com­mit­tee’s in­ter­pre­ta­tion of Ar­ti­cle 104 of the Ba­sic Law: “No pub­lic of­fice shall be as­sumed, no cor­re­spond­ing pow­ers and func­tions shall be ex­er­cised, and no cor­re­spond­ing en­ti­tle­ments shall be en­joyed by any­one who fails to law­fully and validly take the oath or who de­clines to take the oath”; and “Oath-tak­ing must com­ply with the le­gal re­quire­ments in re­spect of its form and con­tent. An oath-taker must take the oath sin­cerely and solemnly, and must ac­cu­rately, com­pletely, and solemnly read out the oath pre­scribed by law, the con­tent of which in­cludes: ‘Will up­hold the Ba­sic Law of the Hong Kong Spe­cial Ad­min­is­tra­tive Re­gion of the Peo­ple’s Repub­lic of China, bear al­le­giance to the Hong Kong Spe­cial Ad­min­is­tra­tive Re­gion of the Peo­ple’s Repub­lic of China.’ ” All things con­sid­ered, the judge was only do­ing his job, in re­spect of law.

De­spite the ju­di­cially valid rul­ing, anti-es­tab­lish­ment law­mak­ers — in their at­tempt to politi­cize what is sup­posed to be a strictly le­gal is­sue — bla­tantly claimed the dis­qual­i­fi­ca­tion of the four law­mak­ers con­cerned is the govern­ment’s “dec­la­ra­tion of war” on the peo­ple. In open con­tempt of the court rul­ing, an as­so­ciate pro­fes­sor at the Uni­ver­sity of Hong Kong’s Fac­ulty of Law went on to make his five re­quests on so­cial media: that Chief Ex­ec­u­tive Car­rie Lam Cheng Yuet-ngor will not re­cover the le­gal costs from the four law­mak­ers, that the by-elec­tions will not be com­bined, that no more law­mak­ers be dis­qual­i­fied, that Ar­ti­cle 23 will not be en­acted, and the pro­ce­dural rules for the Leg­isla­tive Coun­cil will not be amended. If such propo­si­tions aren’t out­ra­geously un­pro­fes­sional and non­sen­si­cal, then it is only fair that the chief ex­ec­u­tive also be en­ti­tled to strike a deal with “pan-democrat” law­mak­ers: End all fil­i­bus­ter­ing or all law­mak­ers from the op­pos­ing camp will be dis­qual­i­fied. But of course, as law-abid­ing cit­i­zens, we can­not al­low that to hap­pen ei­ther — we must re­spect ju­di­cial in­de­pen­dence, and vot­ers will not con­done such ma­lig­nant con­tempt of the rule of law.

As if of­fer­ing us a glimmer of hope that the rule of law and com­mon sense still pre­vail, mem­bers of the pub­lic have filed for the dis­qual­i­fi­ca­tion of two other “pan-democrat” law­mak­ers — Ed­die Chu Hoi-dick and Cheng Chung-tai — as well. While HK$18 mil­lion is much to re­pay, perhaps it could serve as a wakeup call to the dis­qual­i­fied law­mak­ers that con­se­quences do come with the lib­er­ties they take with the oath.

What we have here is jus­tice be­ing served, and oath-tak­ers who de­vi­ate from stan­dard pro­to­col are duly pun­ished with dis­qual­i­fi­ca­tion. The four law­mak­ers’ fu­tile de­fense in call­ing the dis­qual­i­fi­ca­tion ‘political op­pres­sion’ is in­fu­ri­at­ing.

Chow Pak-chin

The au­thor is pres­i­dent of Wis­dom Hong Kong, a lo­cal think tank.

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