HKU expert says right for court to decide on oath - RTHK
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HKU expert says right for court to decide on oath

2016-10-23 HKT 12:42
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  • Professor Albert Chen of The University of Hong Kong says the Legco president's jurisdiction does not cover Section 21 of the Oath and Declarations Ordinance. File photo: RTHK
    Professor Albert Chen of The University of Hong Kong says the Legco president's jurisdiction does not cover Section 21 of the Oath and Declarations Ordinance. File photo: RTHK
Professor Albert Chen
A University of Hong Kong constitutional law expert said on Sunday that the separation of powers here are not under threat. Albert Chen was referring to last Tuesday's unprecedented decision by the Chief Executive CY Leung to challenge the Legco president Andrew Leung in court.

The Legco president had earlier decided to allow two localist lawmakers to retake their oaths of office. But the CE claims their actions, during the oath-taking ceremony on October 12, meant they had already disqualified themselves.

The two Youngspiration lawmakers, Sixtus Leung and Yau Wai-ching, had used a term that was deemed to be derogatory to China. Yau also used an expletive.

Professor Chen said the CE brought the action under a law which does not fall under the Legco president's jurisdiction.

“The main issue which is being litigated is whether the two legislative councillors have vacated their seats, or have been disqualified, because of what they did during the oath-taking ceremony,” he said, “by reason of operation of section 21 of the Oath and Declarations Ordinance.”

Professor Chen said, as the Legco president had no particular jurisdiction to interpret and apply section 21, it was therefore appropriate for the court to decide whether these two lawmakers had been disqualified.

Section 21 states that any person who declines or neglects to take an oath duly tendered which he is required to take by this Part, shall- (a) if he has already entered on his office, vacate it, and (b) if he has not entered on his office, be disqualified from entering on it.

Speaking later at a function, the Chief Secretary Carrie Lam said the government has the responsibility to go to court when it believes the Basic Law has been violated. She said the court's approval of the judicial review shows that there are reasonable grounds to oppose Andrew Leung's decision.

She said the court's rejection of an interim injunction to stop the pair retaking thair oaths - which was also applied for in the name of the CE - shows that the government cannot bar someone from Legco through legal means.

The two Youngspiration lawmakers failed to retake their oaths at last Wednesday's Legco session after pro-government legislators walked out. This resulted in a lack of a quorum.

Lam said the pro-establishment camp was very united. She said this adjournment was different from past ones, which were caused by pan-dem filibustering, or legislators failing to turn up. She said the public can judge whether the walk-out was appropriate.

But the Civic Party's legal sector lawmaker, Dennis Kwok, says the administration's action was highly inappropriate. Speaking at RTHK's City Forum, he said the intention was to interfere with the decision of the Legco president. He said there may be political reasons behind the action.

“It is extremely rare for the Chief Executive himself to take out a judicial review proceeding, and an injunction application, against the Legco president,” he said.

Kwok said he thought CY Leung had put his name to the legal action to support his own re-election bid.

Meanwhile New People's Party lawmaker Regina Ip says the pro-establishment camp is ready to move a Legco motion to delay the two legislators from retaking their oaths of office.

She said she believes the debate will not affect the work of the Legislative Council, because the government has said it will not table any legislation until next month. Ip said the Legco president has no power to allow members to retake their oaths.

The court case, brought as a judicial review, will be head on November 3.

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Last updated: 2016-10-23 HKT 16:36