Pro-Beijing lawmaker Holden Chow said the Legislative Council Commission may lose if they go to court to demand that four disqualified lawmakers return all of their salaries and operating expenses.
The LegCo Commission – an administrative body which comprises mostly of pro-Beijing lawmakers – decided on Monday to send demand letters to “Long Hair” Leung Kwok-hung, Nathan Law, Lau Siu-lai and Edward Yiu. Each will have to pay back between HK$2.7 million and HK$3.1 million – a total of HK$11.74 million.
Chow, who is not a member of the Commission, said that the legislature could lose the case, according to common law principles.
“If they do not receive compensation for all of their contributions, it does not really make sense legally,” the solicitor told the TVB news channel.
“There may be difficulties in court if [LegCo] insists on pursuing all salaries from their first day at work to the time they were disqualified,” he said, adding that it may be unfair to the four. “The difficulty is that the LegCo Commission may lose.”
The four were disqualified by the Court of First Instance in July, after they had worked for nine months as lawmakers. The operating expenses included the wages of dozens of assistants they hired. The court ruled that they were not considered lawmakers from October 12 last year, when they took their oaths of office. It came after Beijing’s controversial interpretation of the Basic Law which demanded that lawmakers take their oaths solemnly and accurately.
Legal scholar Eric Cheung said the incident was related to the legal concept of the “law of restitution based on unjust enrichment.”
Cheung said all parties agreed at the time of the oath-taking that the four took an effective oath, and then performed their duties as lawmakers. Thus, they have the right to the wages and subsidies.
He added that, during their tenure, they spent the subsidies on hiring assistants and performing other LegCo duties, and did not seek other employment: “Clearly, it is not unfair or unjust in law for them to keep the wages and subsidies… The only thing they need to return is the subsidies they have not used.”
“The LegCo Commission should not seek the full amount of wages and subsidies – not because it should exercise discretionary power, but because it should understand and respect the law, and should not waste tax money on cases without adequate legal basis, or on political persecution,” he said.
The LegCo Commission previously went to court to ask two other disqualified lawmakers – Baggio Leung and Yau Wai-ching – to pay back HK$1.86 million wages and subsidies.
Yau said she received a letter from the court, but it only said she should return the funds, without mention of any legal grounding.