The Legislative Council president argued in the High Court on Thursday that the government should not use the court to interfere in the internal affairs of the legislature in order to get the outcome it desires.
Jat Sew-tong, representing Legislative Council President Andrew Leung, said that the government agreed with Leung’s decision that the oaths of Youngspiration’s Yau Wai-ching and Baggio Leung Chung-hang were invalid, but disagreed with his later decision, made in accordance with Article 72 of the Basic Law, to allow the pair to retake their oaths.
Jat said the contradictory positions show that the government had only filed a judicial review against Leung because it did not like his decision. “The court is not a playground of infinite possibilities,” he said.
Last month, Chief Executive Leung Chun-ying and Secretary for Justice Rimsky Yuen Kwok-keung lodged a judicial review against the Youngspiration lawmakers, arguing that the pair had declined to take their oaths and should therefore be ordered to vacate their office.
The government also asked the court to quash Andrew Leung’s decision to allow the Youngspiration duo to be sworn-in again.
In response, Jat said that the legislature’s president is entitled under Article 72 of the Basic Law to decide on the agenda, which includes oath-taking. Even if his decision is wrong, Jat said, it remains the internal affairs of the Legislative Council and the court should not step in.
The counsel added that it was unnecessary and wrong for the government to list Leung as a respondent; instead, it should file a judicial review over the issue of Yau’s and Leung’s oaths itself.
Citing an overseas case, Jat argued that the issue of membership is an internal affair of the legislature.
Jat also argued that under Article 79 of the Basic Law, the Legislative Council president can only disqualify a lawmaker who is “censured for misbehaviour or breach of oath” by a vote of two-thirds of the lawmakers present. He added that the rule applies “even for a murderer.”
Jat said that the government maintained in its submission that Leung is not entitled to allow the Youngspiration pair to retake their oaths on the basis that Section 21 of the Oaths and Declarations Ordinance (ODO) requires a lawmaker who “declines or neglects to take an oath” to vacate his office immediately.
He said the government’s argument is based on the assumption that Section 21 can be triggered automatically.
However, Jat said, the government then contradicted its position by first maintaining that the court is the final adjudicator on whether Section 21 of the ODO should be invoked, and later argued that Leung is obliged to declare that Yau and Leung were no longer entitled to retake their oath in accordance with Section 21.
He said the government’s logic was “rather odd.”
The correct view, he said, is that Section 21 of the ODO cannot be triggered automatically, which would have allowed the Legislative Council Secretariat to disqualify lawmakers without the president’s authorisation.
Further, Jat said, there is no legal obligation imposed on the president stating that he must invoke the section; it remains a matter of discretion.
LegCo president’s stance
Jat added that the president has no interest in Yau’s and Baggio Leung’s “political fortunes” and did not condone their actions.
The counsel previously said that the government risked giving the impression that the executive branch is attempting to meddle in the legislature by involving the LegCo president in the judicial review challenge. The counsel said that the government should avoid making moves that might mislead the public during politically sensitive times.
Additional reporting by Ellie Ng.