23 October 2016
CY Leung and Rimsky Yuen (inset, background) unsuccessfully challenged a decision by Legco President Andrew Leung to allow two Youngspiration legislators-elect to retake the oath of office. Photos: Reuters, HKEJ
CY Leung and Rimsky Yuen (inset, background) unsuccessfully challenged a decision by Legco President Andrew Leung to allow two Youngspiration legislators-elect to retake the oath of office. Photos: Reuters, HKEJ

Abuse of process

Two young prospective legislators demonstrated their immaturity and lack of judgment by abusing the Legco oath-taking ceremony to make a political statement.

The use of obscene language and a deeply offensive reference to China in a word that is associated historically with the Japanese occupying army led, inevitably, to a furious backlash.

If there was even a tissue of respect for old guard pan-democrats, their crass conduct and failure to counsel the young legislative novices has destroyed it beyond redemption.

But with unanticipated wisdom, Andrew Leung, the Legco President offered the errant young people the opportunity to retake the oath.

The oath-taking ceremony is a procedure laid down by Legco for its own governance and Legco has its own regulatory regime.

Legco’s president is, unarguably, the guardian of the council’s procedures.

C.Y. Leung and his legal adviser Rimsky Yuen would have us believe that they are seized with righteous indignation at the opprobrium that the young would-be legislators have cast on China.

However, in a putative effort to lend their extraordinary action a cloak of legitimacy, they sought advice from leading counsel of their choice.

Inasmuch as the Secretary for Justice is a senior counsel, the taxpayers are entitled to inquire why he is expending our money on engaging counsel at the private Bar instead of conducting the litigation himself. He is, after all, paid a salary for just such a function.

On Tuesday, quite suddenly, giving their opponents bare notice by e-mail just before 5 p.m., the government’s chosen leading counsel rushed to court to seek an emergency judicial review against both the young offenders and the Legco president to prevent the oath being retaken.

The relevant legal nature of judicial review is that it is an application “for a review of the lawfulness of a decision, action or failure to act in relation to the exercise of a public function”.

Part of the government’s submission is that “the public would be disappointed if they see that these people who blatantly attacked and challenged the constitutional regime can return and resume office”.

How, if at all, does the public’s disappointment impact on the lawfulness of the Legco president’s decision?

And was it not C.Y. Leung who railed against abuse of the remedy of judicial review?

As one would expect of a highly experienced judge, Justice Thomas Au asked the government’s leading counsel where were the respondents to the application?

When it transpired that not only had the respondents been given very last-minute e-mail notice but that they had not even been given the supporting affidavits, the learned Judge insisted that proper notice be given before he would hear the application.

Barristers are expected to treat their opponents with respect, not to try and ambush them. We are entitled to expect leading counsel to observe such basic courtesies as exemplars of the profession.

Nor was the judge impressed with the government’s argument that this was such an extraordinary case that an immediate injunction be granted.

Judicial review is the public law means by which individuals may challenge the abuse of power by government and quasi-government organs. It is David’s only defence against Goliath.

So, where is the locus standi for Hong Kong’s chief executive to seek judicial review, let alone of an intra vires procedural ruling of the president of Hong Kong’s Legislative Council?

Can you imagine C.Y. trying that on with Jasper Tsang?

The shoe is surely on the wrong foot. Conceptually it is upside down. When did Goliath have the legal power to challenge David’s use of a sling?

Can you imagine the British government trying to seek judicial review of a ruling of the speaker of the House of Commons?

The study of history, beginning with Magna Carta, manifestly a subject not in the curriculum of C.Y. Leung, Rimsky Yuen or their counsel, teaches us that the powers of the executive, administration and judiciary must be kept separate.

Once C.Y. Leung or any of his government creatures get it into their heads that they can interfere arbitrarily with the procedures of Legco, the council will be rendered wholly superfluous.

Although I am not enamoured of our dysfunctional, albeit elected Legco, nonetheless, Disney-like debating chamber though it may be, ‘tis ours.

I made clear at the outset that I disapprove of the young aspirant legislators behavior but the emotional outrage of part of the community must not be allowed to cloud the critical issue of the immunity of Legco from unlawful executive interference.

C.Y. Leung must learn, like King John, that he cannot ride roughshod over the constitutional protections so essential to Hong Kong’s stability.

Due legal process is the lone constraint upon executive excess.

“One country, two systems”. In this regard, and only this regard, it is true that Hong Kong is not yet the same as the People’s Republic of China.

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