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Saturday, November 26, 2016, 00:11

Court entitled to adjudicate in oath-taking saga: Govt lawyer

By Willa Wu

HONG KONG - The oath-taking saga concerns the Basic Law, so it is no longer an internal matter for the city’s legislature and the Court of Appeal has the right to adjudicate, said Senior Counsel Benjamin Yu Yuk-hoi.

Yu is one of the four lawyers representing the SAR government during the Court of Appeal’s hearing on an appeal lodged by two disqualified lawmakers-elect on Friday.

The Court of First Instance ruled on Nov 15 that Sixtus Leung Chung-hang and Yau Wai-ching should be disqualified as lawmakers. They must vacate their seats as members of Legislative Council as they declined to take the stipulated LegCo oath and violated the Basic Law.

The pair deviated from the official oath and used derogatory language insulting the Chinese nation during their swearing-in on Oct 12. They filed an appeal against the ruling on Nov 17.

The lawyers representing the pair argued that the case should be regarded as an internal issue of the legislature and the court should not intervene.

Yu countered the view and told the Court of Appeal that adjudication by the court is warranted because the dispute over the validity of the pair’s swearing-in has become a constitutional matter.

The LegCo oath explicitly requires that the oath-taker should swear allegiance to the Hong Kong SAR of the People's Republic of China. The Basic Law states that Hong Kong is an inalienable part of China.

If a lawmaker-elect declines to act in accordance with the legal requirement, the matter is not merely an internal matter of the legislature, and the court has grounds to intervene, he said.

Yu also rebutted the defense counsels on their submission that the oath administrators had a final say on determining the oath’s validity.

Yu pointed out the recent interpretation by the nation’s top legislature of Article 104 of the Basic Law stipulates the duties of the oath administrator to ensure the oath-taking is conducted in accordance with law.

But the authority lies with the court to adjudicate whether an oath is valid or not, he added.

On Thursday, the first day of the appeal hearing, Yu objected to the defense counsels’ submission that the case could be resolved without involving a Basic Law interpretation. He said local courts in Hong Kong were bound by the interpretation by the Standing Committee of the National People’s Congress (NPCSC).

Chief Judge of the High Court Andrew Cheung Kui-nung said during the hearing that the recent NPCSC interpretation had become part of the Basic Law - hence it is binding on local courts.

Cheung, discussing Thursday’s hearing, also suggested the court had the authority to intervene in matters involving the legislature if there were constitutional grounds. This is because the Basic Law has supreme status in Hong Kong.

The Court of Appeal announced that it will deliver its ruling next Tuesday or Wednesday.

Cheung said that the court anticipates the losing party will file an appeal to the Court of Final Appeal. It will arrange a hearing the next day after the ruling is issued.
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