Date
6 December 2016
Following an adverse High Court ruling, Yau Wai-ching and Sixtus Leung argued repeatedly that they can't be removed from the Legco since they had been elected democratically by their constituents. Photo: HKEJ
Following an adverse High Court ruling, Yau Wai-ching and Sixtus Leung argued repeatedly that they can't be removed from the Legco since they had been elected democratically by their constituents. Photo: HKEJ

Why the Youngspiration duo lost their case

The oath-taking farce involving the Youngspiration duo has seen a chapter come to close as the High Court ruled on Tuesday that the two-lawmakers elect must be disqualified as they had grossly violated the Oaths and Declarations Ordinance.

Perhaps the most noteworthy thing about the High Court decision is that Justice Thomas Au asserted that his ruling was based entirely on the Basic Law and relevant local laws, rather than the guidelines laid down by the recent interpretation made by the National People’s Congress Standing Committee (NPCSC).

He also stressed that his ruling on the case had not been influenced by any external factor at all, and that he would have made the same decision even without the NPCSC interpretation.

Justice Au’s ruling has proven the point that I made in my last article, which is, the NPCSC interpretation was a reckless and unnecessary move, because the oath-taking case could be settled properly and thoroughly within Hong Kong’s own legal framework. In other words, the NPCSC interpretation has proven totally redundant.

It appears Justice Au was able to remain impartial and unbiased throughout the trial, despite all the publicity surrounding the case and possibly intense political pressure from Beijing. Based on the forceful and convincing arguments the judge presented in his ruling, it is apparent that his decision was made on the basis of solid and substantial legal grounds, and is therefore beyond dispute.

In contrast, the arguments presented by Yau Wai-ching and Sixtus “Baggio” Leung Chung-hang — the two lawmakers at the center of the controversy — during the trial appeared to be both weak and flimsy, and could not even stand the most basic legal scrutiny in court.

For example, the duo cited Article 77 of the Basic Law, which stipulates that “members of the Legislative Council shall be immune from legal action in respect of their statements at meetings of the Council.”

Under Article 77 of the Basic Law, Legco “members” are immune from any legal liability for what they have say during Legco “meetings”.

However, both Yau and Leung were not yet Legco members officially when they took their oaths, nor should the swearing-in ceremony itself be considered a Legco meeting. Besides, the oath of the Legco office itself is hardly a speech or statement by nature either, and therefore doesn’t fall within the jurisdiction of Article 77.

In fact, one of the major reasons why the two lawmakers-elect lost their case is because they cited the wrong piece of legislation in their arguments during the trial.

Worse still, the arguments presented by the duo were further undermined by the fact that they didn’t even bother to cite the point that it remains questionable whether the words they used and the flag they exhibited during their oath-taking constituted any refusal to take the oath under the Oaths and Declarations Ordinance.

Even Justice Au was puzzled by their failure to cite that forceful point during the trial.

After the High Court ruled in favor of the government and declared the lawmaker status of Yau and Leung as null and void, the duo vowed to appeal, arguing repeatedly that they were rightfully elected by their constituents, and therefore no one, including the court, has the power to remove them from office because public opinion is on their side.

Once again, they got it all wrong, as in any society governed by the rule of law, court decision is always made solely on the basis of legal grounds and substantial evidence rather than public opinion.

In other words, when deciding whether someone is guilty or not, the court would only take in account whether he or she has actually broken the law.

Public sentiment and general opinion are never the court’s concern when it comes to trials.

This article appeared in the Hong Kong Economic Journal on Nov. 17

Translation by Alan Lee

[Chinese version 中文版]

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RC

HKEJ columnist

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