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Tuesday, October 25, 2016, 23:41

Ways to tackle the oath-taking fiasco in the LegCo

By Song Sio-chong

In the past two weeks, the “only news” in Hong Kong appears to me to be the oath-taking row. Legislative Council members-elect are required by the Basic Law and the Oaths and Declarations Ordinance to take an oath. At the swearing-in ceremony held on Oct 12, the oaths of some separatists were very badly presented — containing debasing and derogatory words that offended all Chinese. Three other legislators-elect’s oaths were considered unsuccessful because they dropped or added some words carelessly.

Ways to tackle the oath-taking fiasco in the LegCo Without distinguishing the nature of their non-compliance, LegCo President Andrew Leung Kwan-yuen decided to allow all of the five legislators-elect to retake their oaths on Oct 19.

The government agreed that only those who made a careless mistake should be allowed to retake the oath, insisting that the separatists should not be allowed to do so. It made an urgent application to the Court of First Instance on Oct 18 for an interim injunction and for a judicial review. By the night before new oaths were to be taken, the court declined to render an injunction but gave its consent to hear the judicial review case on Nov 3.

In my opinion, the reason for the injunction based on Section 73 of the Legislative Council Ordinance may not fit the case, because this section applies to a disqualified member who pretends to be a member. In this case an injunction may be approved upon the application of an elector or the secretary for justice restraining the defendant for acting in this way.

As to judicial review, prior consent should be given before a formal hearing is carried out. The consent will have merit, for instance, if it involves interpretation of certain provisions of legislation within the court’s jurisdiction. In such a case, the LegCo may defer the taking of oath pending the court’s decision as a prudent measure. Andrew Leung insisted, however, on allowing the separatists to take the oath on Oct 19 without waiting for the result of the judicial review. Out of necessity, the pro-establishment camp used the quorum rule to prevent the separatists from retaking the oath on Oct 19.

The opposition camp has been criticizing the judicial review action by the government as ruining the political structure of the SAR — its “separation of powers”. But this is definitely a misnomer as before 1997 the executive-led government had been applied, preserved and continued after the handover by virtue of the “One Country, Two Systems” principle and the provisions of the Basic Law. Moreover, before and after the handover, the practice of judicial review for and against the government and statutory bodies had been allowed.

In our political system, it is illogical to blame one finger for damaging the movement of the whole palm. Judicial review is not only practiced in an executive-led political system like Hong Kong, it is also practiced in parliamentary systems like the United Kingdom and in “separation of powers” systems such as the United States. By the same token, it is also illogical to complain about similar cases of judicial review in the UK and US.

All the aforementioned examples of judicial reviews are under the common law jurisdiction, but they differ in different jurisdictions. In the US, there is judicial review on whether the federal laws conform with the constitution. These are subject to repeal by the court if they do not conform. In the UK, the court may, however, interpret the Human Rights Act to see whether other parliamentary acts are in conformity without the power to repeal. In the HKSAR, the court’s interpretation of the Basic Law is subject to the final interpretation by the Standing Committee of the National People’s Congress (NPCSC) as stipulated in Article 158 of the Basic Law.

The LegCo president decided on Tuesday to defer the swearing-in of the two separatist legislators-elect until the court gives a ruling on his decision to allow them to retake the oath. But the issue will remain if the court does not favor the government application. In such a case, the government may appeal to the Court of Appeal, and continue on to appeal to the Court of Final Appeal as the matter concerns important national and public interests. The possibility of interpretation of Article 104 of the Basic Law by the NPCSC may not be precluded.

Therefore, I propose alternatives:

One is for any LegCo member to make a motion to vote on whether allowing the separatists to retake the oath is in the public interest and to veto the LegCo president’s decision to allow the separatists to retake the oath. As it is a private member motion, a simple majority vote of each of the two groups of members present — members returned by functional constituencies and those returned by geographical constituencies through direct election — as provided by Annex II of the Basic Law will be required. The opposition camp may disagree and the requirement will not be achieved.

The second is for the Chief Executive to propose a similar motion or amendment bill to clarify the relevant provisions in the Oaths and Declarations Ordinance in this respect pursuant to Article 73(2) of the Basic Law. By virtue of Annex II of the Basic Law, the passage of either the motion or the amendment bill will likely be met, with support from the public.

The author is a Hong Kong veteran commentator and PhD in law at Peking University.

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