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Chris Lau

The four pan-democratic lawmakers facing legal action to force them out of the Legislative Council can avoid disqualification if they can prove they took their oaths solemnly, legal experts say.
It will partially come down to whether the four can convince the court that their antics during their swearing-in should not be considered insincere ­– and thus not ­deliberate acts of declining or ­neglecting to take their oaths, they say.
Hong Kong’s pan-democratic camp reaches a fork in the road
The four would have more room to manoeuvre on that, ­University of Hong Kong principal law lecturer Eric Cheung Tat-ming said, pointing to the fact that Youngspiration lawmakers Baggio Sixtus Leung Chung-hang and Yau Wai-ching did not dispute the issue. “The lower court was not ­required to draw a line on that issue,” he said.
“Long Hair” Leung Kwok-hung, Nathan Law Kwun-chung, Lau Siu-lai and Edward Yiu Chung-yim are the targets of Chief Executive Leung Chun-ying and Secretary for Justice Rimsky Yuen Kwok-keung’s second round of efforts to disqualify
Watch: Financial secretary refuses to take questions from lawmakers


The Court of First Instance has already given permission to hear the case and will hold a preliminary hearing next Thursday.
After revealing their bid to disqualify the four lawmakers, the justice secretary was quick to give an assurance that the move was entirely legal. The four, plus Baggio Leung and Yau, won a total of 185,727 votes in the September elections. But pundits, including Cheung, slammed it for being politically driven, accusing the government of undermining the city’s democracy.
Beijing interpretation on Legislative Council oath taking rattles Hong Kong
Senior counsel and former lawmaker Ronny Tong Ka-wah said: “The four each has his or her unique case, so it is up to the court to decide whether they have declined or neglected [their oath].” He said the court would take into account their words and actions and circumstantial evidence.
The oath-taking saga started with Baggio Leung and Yau’s use of controversial words and acts during the oath-taking ceremony in the Legislative Council on ­October 12. The pair unfurled banners saying “Hong Kong is not China” and used a term deemed derogatory to Beijing.
Their act prompted the government to launch high-profile legal action to unseat them, followed by an interpretation by Beijing of Article 104 of the Basic Law, which covers oath-taking.
Watch: Lau Siu-lai takes her oath in slow motion


Government lawyers said the pair’s act showed they had ­declined the oath. Baggio Leung and Yau did not contest that, but instead focused their case on whether the court had jurisdiction to meddle in Legco’s affairs.
The pair lost their cases in both the Court of First Instance and the Court of Appeal.
In a ruling that will have a binding effect on the cases involving the four lawmakers, the appeal court reaffirmed the lower court’s finding that the Basic Law was “supreme” and therefore the courts could intervene when Legco had breached the mini-constitution.
It also found that lawmakers would not enjoy their usual immunity when it came to oath-taking, and that the city’s courts would be bound by Beijing’s interpretation.
Cheung said the legal points raised by the localist pair’s lawyers were already mostly restricted by the framework set out by the appeal court judgment and the interpretation, which spelled out in particular that once an oath had been declared invalid, it should be deemed as having been declined or neglected.
But whether they would succeed in contending that this was not the case would depend on the stance they would adopt during the court hearings, Cheung said.
Watch: Localist lawmakers lose their appeal over ban


Both Cheung and Tong agreed that Lau Siu-lai, among the four, would have the hardest case to fight in large part due to a social media blog post she made.
Lau’s first oath, which was declared invalid as she paused for six seconds between each word, was followed by a subsequent message posted on a Facebook page affiliated to her saying the words were deliberately broken up to be rendered meaningless.
Tong added in Law’s case, the student activist-turned lawmaker turned part of the oath, which was meant to be a statement, into a question when he deliberately raised the tone of his voice in pronouncing the word China.
“If the court finds it a deliberate attempt ... it amounts to a change in the substance of the oath,” he said, citing reasoning from a 2004 case when Leung Kwok-hung took on Legco so he could be sworn in with an oath he amended.
But Tong said the case against Leung Kwok-hung was weaker and the one targeting Yiu less straightforward.


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Focus

Success of four Hong Kong lawmakers facing expulsion will rest on oath solemnity, say legal experts

Edward Yiu (left), Nathan Law, Lau Siu-lai and Leung Kwok-hung protest against Leung Chun-ying. Photo: Nora Tam

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Hong Kong

Politics

Cases brought by government may be more difficult than against Youngspiration pair, although some will be easier to argue than others


Legislative Council oath-taking saga