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Tuesday, October 25, 2016, 12:24

Call to defer oath of pro-independence duo until court ruling

By Joseph Li
Call to defer oath of pro-independence duo until court ruling

Albert Chen Hung-yee is a member of Hong Kong Basic Law Committee and teaches law at the University of Hong Kong. (Edmond Tang / China Daily)

HONG KONG – Hong Kong Basic Law Committee member Albert Chen Hung-yee said the president of the Legislative Council should defer administration of oath to Leung Chung-hang and Yau Wai-ching, the two who have pro-Hong Kong independence tendencies, as the government initiated legal action to dispute their status as lawmakers.

The law also stipulates that once a person, who declines or neglects to take an oath, has entered office, he should vacate it. If he has not taken office, he should be disqualified from entering office

It is understandable that LegCo President Andrew Leung Kwan-yuen permitted five lawmakers-elect to take the oath again after their initial oaths on Oct 12 were declared invalid, he said, adding that the LegCo chief should reconsider his decision in view of latest developments.

Speaking to China Daily in an exclusive interview, Chen, who is also a law professor at the University of Hong Kong, noted that Leung Chung-hang and Yau had carried with them a pro-independence banner and uttered words that insulted China during their oath on Oct 12.

He envisaged that the government would argue in court that based on their gestures and words, they were not swearing truthfully and their conduct amounted to the offense of "declining or neglecting to take an oath" as stated in Section 21 of the Oaths and Declarations Ordinance.

The law also stipulates that once a person, who declines or neglects to take an oath, has entered office, he should vacate it. If he has not taken office, he should be disqualified from entering office.

In Chen’s opinion, the LegCo president should defer administration of oath for Leung Chung-hang and Yau planned for Oct 26 until outcome of the court judgment.

"In accordance with the Rules of Procedure, the LegCo president has the authority to set the agenda of LegCo meetings,” said the professor.

"Although he has earlier approved that the disputed persons can re-take the oath, he can reverse his own decision on the ground that the government has initiated a judicial review, while more than half of the LegCo members are asking to delay it.”

Chen knows the Court of First Instance will hear the judicial review case on Nov 3 and believes the court can resolve it rather quickly in a few weeks.

Although either side may appeal, the Court of First Instance ruling will be very significant because it decides whether the pair can remain as lawmakers.

The academic further said it is some people’s misconception that the government’s legal action intervenes with LegCo internal affairs and harms executive-legislative relations.

“It is more than LegCo internal businesses because the dispute involves Article 104 of the Basic Law (concerning swearing-in of government officials and lawmakers) and Section 21 of Oaths and Declarations Ordinance. It is also for the court, but not the LegCo president, to rule if a person has violated Section 21,” he pointed out.

In general, the court does not interfere with LegCo businesses, he said, as the Court of Final Appeal has ruled that the LegCo president has the authority to stop filibusters.

“The government applied for injunction to prevent Leung (Chung-hang) and Yau from swearing again. The court did not grant injunction but it does not mean the court feels they should be given another chance. It just did not want to intervene with the LegCo president’s decision until the case is heard, as the court will decide if the pair should be disqualified on basis of their initial oaths on Oct 12,” he explained.

Chen also said it was no harm for pro-establishment lawmakers to abort the meeting last week to prevent the pair from re-taking the oath. “The ‘pan-democrats’ have always filibustered and aborted meetings, but that is not their monopoly,” he commented.

joseph@chinadailyhk.com
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