Date
6 December 2016
Yau Wai-ching of the localist group Youngspiration is among the two newly-elected Legco members who are facing heat over their modified oaths earlier this month. Photo: Bloomberg
Yau Wai-ching of the localist group Youngspiration is among the two newly-elected Legco members who are facing heat over their modified oaths earlier this month. Photo: Bloomberg

Who has the power to remove a lawmaker from office?

There has been talk in the pro-Beijing camp about urging the government to invoke the Oaths and Declarations Ordinance to strip two newly-elected young lawmakers of their office because of their use of “offensive” words during their oath-taking.

The Oaths and Declarations Ordinance stipulates that “any person who declines or neglects to take an oath duly requested which he or she is required to take shall vacate office or be disqualified from entering on it”.

However, the ordinance doesn’t say anything about who has the power to enforce it if such scenario arises.

To make things worse, the ordinance itself is in fact against both Articles 79 and 104 of the Basic Law, and is therefore unconstitutional.

According to Article 79, a lawmaker can be removed from office under seven specific circumstances. They are: 1. Being physically unfit for carrying out the official duties of a legislative councilor; 2. Failure to attend the Legco general meeting for three consecutive months in the absence of official permission granted by the Legco president or any substantial justification; 3. Loss of his or her Hong Kong permanent citizenship; 4. Accepting an appointment by the Chief Executive to the government; 5. Declaration of bankruptcy.

And under the following two circumstances, a lawmaker can be removed from office, provided there is a two-thirds majority vote for such move. They are: 6. Conviction of a criminal offence and sentencing to jail for more than one month, and 7. Violation of the oath of the Legco office.

As we can see, failure to take the oath of the Legco office properly or in the way as required doesn’t constitute any circumstance under which a lawmaker can be stripped of his office, according to the Basic Law.

Likewise, even though Article 104 of the Basic Law states that before assuming their office, lawmakers “must swear to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China”, it doesn’t say that failure to do so will automatically cost that lawmaker his job.

Some might argue that the situation with the Youngspiration duo may satisfy either the second or the seventh circumstance stated in Article 79.

At first glance they may have a point but in reality they don’t. It is because on one hand, even if the two young lawmakers fail to attend Legco meetings for, let’s say, three months, it won’t constitute any violation of Article 79 if they are unable to do so because the pro-establishment camp continues to stage walkouts to deliberately cause the meetings to adjourn so that they can’t retake their oaths and assume their office.

On the other hand, how could anybody be guilty of violating the oath of office if that person hasn’t even taken it at all?

Perhaps some might also argue that the Youngspiration duo can still be removed from office if the High Court eventually rules in favor of Chief Executive Leung Chun-ying in his judicial review application to bar them from retaking their oaths.

However, it is important to note that, again, according to Article 79 of the Basic Law, the decision over whether a lawmaker should be removed from office rests entirely and solely with Legco, and both the Chief Executive and the court have basically no constitutional roles throughout the process.

As such, even if the court eventually rules in favor of Leung, the decision will definitely be a highly debatable one, putting it open to legal challenge by the two lawmakers in question and to further scrutiny by superior courts.

This article appeared in the Hong Kong Economic Journal on Oct. 22.

Translation by Alan Lee

[Chinese version 中文版]

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RC

Associate Professor of Law at the University of Hong Kong

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