Counsel for Youngspiration’s Yau Wai-ching and Baggio Leung Chung-hang have questioned the role of the chief executive in a judicial review challenge over the oath-taking dispute.
Hectar Pun, who is representing Leung, asked in the High Court on Thursday whether Chief Executive Leung Chun-ying filed for the judicial review in his personal capacity as an elector. Section 73 of the Legislative Council Ordinance stipulates that only an elector or the Secretary for Justice can lodge a challenge against lawmakers on the grounds that they have been disqualified.
If the chief executive was acting in his personal capacity, Pun asked, why was he represented by the Department of Justice and why is the public paying for the lawsuit? He added that it would be impossible for the chief executive to be an elector in the Kowloon West and New Territories East constituencies that the Youngspiration politicians ran in.
Chief Executive CY Leung and Secretary for Justice Rimsky Yuen Kwok-keung argued on Thursday that the Youngspiration lawmakers declined to take their oaths and should therefore be ordered to vacate their office.
In response, Pun said that completing the oath-taking procedure is not a requirement for being a lawmaker. He argued that the office of a lawmaker would only become vacant under circumstances listed in Section 15 of the Legislative Council Ordinance. But no requirement under the section has been met, he said.
The government also argued that Section 21 of the Oaths and Declarations Ordinance (ODO) requires lawmakers who decline to take the oath to vacate their office “immediately.”
Pun rebutted that the correct reading of the section is that either the lawmakers have to resign, or the legislature’s president declares their office vacant. His submission was based on the use of the discretionary “shall” in Section 21 of the ODO. Pun added that the president can only make such declarations by a two-thirds majority vote.
But Mr Justice Thomas Au asked Pun what if the lawmakers refuse to resign and the president declines to declare their office vacant.
Pun responded: “There is of course a political price to be paid.”
Pun also said that the oath dispute belongs to the internal affairs of the legislature, since neither Legislative Council President Andrew Leung nor the Secretariat refused to administer the oaths of Yau and Baggio Leung.
In addition, he said, Baggio Leung wrote to the president that he intends to retake the oath, and his oath-taking was listed on the Legislative Council’s agenda. He concluded that the court should not interfere.
Pun added that the validity of oaths should be determined by the oath administrator, otherwise every oath would be challenged in court. The court would be “very busy,” which would not have been the intention of the law, the lawyer argued.
Pun said that the invalidated oaths of the Youngspiration pair should be seen as speeches made in the legislature, which are protected by the principle of legislative immunity guaranteed by the Basic Law.
Separation of powers
Senior Counsel Philip Dykes, representing Yau, said the doctrine of separation of powers is stipulated by the Basic Law, and it is questionable whether institutions other than the legislature have the right to rule over the oath dispute.
He said the dispute concerns Article 79 of the Basic Law, which stipulates that lawmakers who are “censured for misbehaviour” can only be disqualified by a two-thirds majority vote in the legislature.
He further argued that the immunity provided by Articles 77 and 78 of the Basic Law should be extended even to members of the Legislative Council who have yet to complete their oaths.
Article 77 of the Basic Law stipulates that lawmakers are immune from legal action regarding their statements during meetings at the legislature. Article 78 of the Basic Law protects lawmakers from being arrested when attending meetings at the legislature.
Similar to the argument of Jat Sew-tong, counsel for the legislature’s president, Dykes said that the president is not obliged to invoke Section 21 of the ODO, which stipulates that lawmakers shall vacate their office if they decline or neglect to take their oath.
Mr Justice Thomas Au said he would deliver his ruling “as soon as practicable.” He also said he would consider issuing a ruling first and reserving his judgement for a later day in response to a request from the government’s counsel Benjamin Yu.
Additional reporting by Ellie Ng.