Ex­pert: Op­po­si­tion de­fied con­se­quences of al­tered oaths

China Daily (Hong Kong) - - HK | INTERVIEW - By JOSEPH LI in Hong Kong joseph@chi­nadai­lyhk.com

The High Court dis­qual­i­fied the four op­po­si­tion law­mak­ers on July 14 for their fail­ure to take Leg­isla­tive Coun­cil oaths prop­erly, ex­plained Al­bert Chen Hungyee, 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 Kwokhung, Nathan Law Kwunchung, Yiu Chung-yim and Lau Siu-lai — also al­legedly com­mit­ted con­tempt of court; this occ urred 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 r u l i n g ,” C h e n s a i d . “I a m 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 a n d Ya u Wa i - c h i n g , w h o were dis­qual­i­fied last year after they made a mock­ery of their oaths by adding “proin­de­pen­dence” 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 L eung 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 Kwanyuen, 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. T he 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.”

If peo­ple sign the (con­fir­ma­tion) form, say and do noth­ing wrong dur­ing the cam­paign, it will be dif­fi­cult to ex­clude them from the elec­tion.”

Al­bert Chen Hung-yee,

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