Last Tuesday, the High Court denied an application for an interim injunction filed by the Department of Justice (DOJ) to block the two lawmakers-elect from retaking their oaths of office, saying that would constitute an unreasonable deprivation of the constitutional rights of the Youngspiration duo who were lawfully elected to the Legislative Council.
However, Justice Thomas Au Hing-cheung did allow a hearing on the application for a judicial review filed by the government against Legco president Andrew Leung Kwan-yuen’s decision to allow the two to retake their oaths, which is scheduled for Nov. 3.
In other words, the High Court didn’t think that allowing the two localists to be sworn in before the court makes its final decision on the DOJ’s judicial review application is unconstitutional.
However, things took a nasty turn the following day as lawmakers from the pro-establishment camp staged a walkout just minutes after the commencement of Legco meeting, causing the meeting to be adjourned and preventing the Youngspiration duo from retaking their oaths.
Then on Tuesday this week, the Legco president overturned his own decision made last week and decided to postpone the oath-taking of the two young lawmakers until the court has ruled on the case.
Former Legco president Jasper Tsang Yuk-sing later said during a media interview that he agreed with Andrew Leung’s decision because it could avoid further constitutional dispute while all it would cost is the loss of the young duo’s right to attend a few Legco meetings.
I feel compelled to refute Tsang’s argument because it is fallacious, if not wholly misleading.
That is because Tsang failed to mention one key factor, which is, whatever the result of the court hearing on Nov. 3, the losing side will almost for certain appeal to superior courts, and it may take years before an ultimate court decision is reached on the case.
In fact, the walkout staged by the pro-establishment camp last week was worse than any other such instances in the past, as it wasn’t aimed to block any government bill or funding request, nor was it directed at the opposing camp.
Rather, it was intended to force the Legco president to withdraw his decision and do as they say, something that amounts to an open threat.
That was an outright infringement of the Legco president’s constitutional power as stated in the Basic Law, and set a very bad precedent.
In the future, it is likely that the pro-establishment camp may employ the same tactic to force the Legco president to take back any decision that is not to their taste.
After the walkout members of the pro-establishment camp argued that they were fully justified in doing so because the Youngspiration duo had refused to take the oath of office properly and fulfill the solemn promises as lawmakers under the Basic Law.
Besides, they felt morally bound to reject the offensive words used by the duo and defend the dignity of all Chinese around the world.
Ironically, that was indeed the pot calling the kettle black when the pro-establishment camp said the young duo had failed to fulfill the solemn promises as lawmakers because they themselves had done exactly the same thing by deliberately causing the Legco meeting to adjourn last week.
According to the oath of the Legco office, a lawmaker must abide by the Basic Law, be able to fulfill their duties under all circumstances and serve the public.
Unfortunately, it appears the pro-establishment camp has violated all these solemn promises.
First, threatening the Legco president with walkouts to make him overturn his decision is apparently against Article 72 of the Basic Law, which lays down the official power of the Legco president.
Second, deliberately paralyzing the legislature and threatening to do so repeatedly for political purposes is obviously against the solemn promise that lawmakers must fulfill their duties under all circumstances.
And lastly, under the oath of the Legco office, lawmakers are supposed to serve the people of Hong Kong, not Beijing nor all Chinese around the world.
That said, giving priority to all Chinese around the world over the Hong Kong public obviously constitutes a violation of the oath of the Legco office as well.
This article appeared in the Hong Kong Economic Journal on Oct. 26.
Translation by Alan Lee with additional reporting
[Chinese version 中文版]
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