Re­jec­tion of stu­dent’s at­tempt to un­seat law­maker ques­tion­able

China Daily (Hong Kong) - - COMMENT -

The court on July 27 ruled plain­tiff Mok Ka-kit would not be in a po­si­tion to un­seat law­maker Lau Siu-lai as he did not vote in her con­stituency in Kowloon West. The High Court or­dered Mok to with­draw the case and pay Lau’s le­gal fees.

Lau has al­ready been dis­qual­i­fied as the out­come of an­other le­gal ac­tion, so why the trou­ble for Mok? And why should we care? The rea­sons are man­i­fold.

On Nov 15 last year Jus­tice Thomas Au of the Court of First In­stance of the High Court de­liv­ered a judg­ment on whether the oath-tak­ing of Six­tus Le­ung Chung-hang and Yau Wai-ching on Oct 12 com­plied with the rel­e­vant le­gal re­quire­ments. Jus­tice Au ruled against Le­ung and Yau.

Le­ung and Yau ap­pealed. Af­ter con­sid­er­ing the in­ter­pre­ta­tion of Ar­ti­cle 104 of the Ba­sic Law adopted by the Na­tional Peo­ple’s Congress Stand­ing Com­mit­tee on Nov 7, the rel­e­vant case law and other laws, the Court of Ap­peal dis­missed their ap­peals on Nov 30 and up­held the judg­ment of Jus­tice Au.

Af­ter the Le­ung and Yau case was set­tled, the govern­ment com­menced le­gal pro­ceed­ings against four more Leg­isla­tive Coun­cil mem­bers, in­clud­ing Lau, and re­quested the court to de­clare their oaths pur­port­edly taken as in­valid and their of­fice as now va­cant.

Then some­thing pe­cu­liar hap­pened. A few days later, on Dec 7, the court asked Mok to ad­dress the court on whether he had suf­fi­cient lo­cus in bring­ing the ju­di­cial re­view seek­ing re­lief against Lau. Lo­cus, short for lo­cus standi, is the abil­ity of a party to demon­strate to the court suf­fi­cient con­nec­tion to and harm from the law or ac­tion chal­lenged to sup­port that party’s par­tic­i­pa­tion in the case.

A more rea­son­able ques­tion for the court to ask Mok would be some­thing like: “Look, the govern­ment is now also do­ing the same thing that you have been try­ing to do. In view of this new in­for­ma­tion, will you with­draw your case?” It was true that Mok’s lo­cus was some­how af­fected by the govern­ment’s new pro­ceed­ings but an en­quiry en­tirely fo­cused on the mat­ter of Mok’s lo­cus seemed un­called for at that time.

Mok’s lawyers were more clear-headed. On Dec 12, they wrote to the court seek­ing a stay of th­ese pro­ceed­ings, pend­ing the de­ter­mi­na­tion of the govern­ment’s above-men­tioned ju­di­cial re­view. The lawyers also asked the court to post­pone the ad­dress on the ques­tion of Mok’s lo­cus un­til af­ter a lift of the stay.

The ap­proach of Mok’s side was sen­si­ble. At that time, the govern­ment was “a bet­ter-placed chal­lenger” (us­ing Jus­tice Au’s words) and the ex­is­tence of which af­fected Mok’s lo­cus. But things might well again change af­ter the govern­ment’s ju­di­cial re­view was con­cluded. The au­thor is a vet­eran cur­rent affairs com­men­ta­tor.

Ex­pe­ri­ence has taught us that a thousand things can go wrong in a le­gal pro­ceed­ing.

Ex­pe­ri­ence has taught us that a thousand things can go wrong in a le­gal pro­ceed­ing. Many of which can be pure tech­ni­cal­i­ties — a crim­i­nal can walk be­cause the po­lice for­got to cau­tion him. Mok’s de­ci­sion to wait and see is pru­dent; if the govern­ment messed up, all would not be lost.

In his rul­ing on Mok’s case, Jus­tice Au again paid a lot of at­ten­tion to Sec­tion 73 of the Leg­isla­tive Coun­cil Or­di­nance, which is ti­tled “Pro­ceed­ings against per­sons on grounds of dis­qual­i­fi­ca­tion”. The logic or lack thereof in his dis­cus­sion is worth not­ing be­cause this sec­tion is of­ten re­ferred to in the oath-tak­ing re­lated cases.

Sec­tion 73 of the or­di­nance pro­vides the le­gal av­enue for a per­son to take out le­gal pro­ceed­ings seek­ing those sub­stan­tive dec­la­ra­tions against a LegCo mem­ber who has been dis­qual­i­fied but has con­tin­ued to act or claimed to be en­ti­tled to act as a LegCo mem­ber. Sec­tion has re­quired that only an elec­tor or the sec­re­tary for jus­tice can bring pro­ceed­ings un­der Sec­tion 73.

In his judg­ment, Jus­tice Au quoted ap­prov­ingly Lam VP in CE v The Pres­i­dent of LegCo: “In any event, given that Sec­tion 73 was en­acted to pro­tect mem­bers of the LegCo against un­lim­ited chal­lenges to their of­fices, I be­lieve even in cases where an ap­pli­cant is out­side the scope of that sec­tion and an ap­pli­ca­tion is brought by way of ju­di­cial re­view, the court must bear such pro­tec­tion in mind in as­sess­ing whether leave should be granted.”

By some rather un­clear rea­son­ing, Jus­tice Au was in ef­fect telling us that the ques­tions of “is a per­son dis­qual­i­fied” and “what do we do about a per­son who has been dis­qual­i­fied” be­long to the same genre, and should be tack­led us­ing the same prin­ci­pals. I re­spect­fully dis­agree.

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