Legislative Oaths and Judicial Intervention in Hong Kong

Hong Kong Law Journal, Vol. 47, pp. 1-15, 2017

University of Hong Kong Faculty of Law Research Paper No. 2017/028

13 Pages Posted: 3 Oct 2017 Last revised: 27 Jun 2018

See all articles by Po Jen Yap

Po Jen Yap

The University of Hong Kong - Faculty of Law

Date Written: 2017

Abstract

In this comment, we disagree with the Court of Appeal's decision to disqualify two newly elected members of the Legislative Council from office. While we accept that the judiciary is empowered under Art 104 of the Basic Law to determine whether an oath taken is valid, it is our view that after the oath is judicially deemed invalid, it should be left to the President of LegCo to determine whether the lawmaker is to be denied a second chance of retaking the oath and be disqualified. First, the CA held that para 2(3) of the relevant Interpretation by the Standing Committee of the National People's Congress “automatically disqualified [the pair of lawmakers] from assuming their offices”, but the term “automatic” or “automatically” is found nowhere in the Interpretation. The Interpretation only uses the term “forthwith”, which means “without delay”, and it would not be inconsistent with the Interpretation for the CA to punt the issue over to the President to proceed with the disqualification expeditiously. Second, reading ss19 and 21 of the Oaths and Declarations Ordinance (Cap 11) together, we argue that a lawmaker can only be disqualified for declining to take the requisite oath if he had not taken a valid oath after a reasonable time had elapsed. Therefore, the lawmaker is not disqualified “automatically” on the first occasion where he declined to take the requisite oath. Third, the principle of non-intervention in the internal process of LegCo applies herein. Whilst the courts have jurisdiction to determine whether the President has the general power to grant or deny a newly elected LegCo member the opportunity of retaking the requisite oath after the original attempt was judicially deemed invalid, the courts will not exercise jurisdiction to determine the specific occasion or manner of exercise of this power by the President. Finally, if the Interpretation is treated as a piece of legislation instead of a judicial decision, and if Hong Kong courts were to approach this legislation using common law principles of statutory interpretation, the presumption against retrospectivity of legislation applies; and on the facts of this case, this Interpretation would not operate retrospectively to events that predated its announcement.

Suggested Citation

Yap, Po Jen, Legislative Oaths and Judicial Intervention in Hong Kong (2017). Hong Kong Law Journal, Vol. 47, pp. 1-15, 2017; University of Hong Kong Faculty of Law Research Paper No. 2017/028. Available at SSRN: https://ssrn.com/abstract=3046359

Po Jen Yap (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://hub.hku.hk/rp/rp01274

Register to save articles to
your library

Register

Paper statistics

Downloads
114
rank
235,507
Abstract Views
403
PlumX Metrics