A resolution by China’s top legislative body on the allegiance of Hong Kong lawmakers is expected to come under intense constitutional scrutiny, top legal experts and an adviser to the city’s leader say.
The decision, which could lead to fresh disqualification of filibustering opposition members, may even run into difficulty given existing laws that require a two-thirds approval of the Legislative Council to kick out certain offending members, they warned.
The National People’s Congress Standing Committee is expected to endorse the resolution at the end of its two-day meeting on Wednesday clarifying Article 104 of the Basic Law, the city’s mini-constitution. It requires lawmakers and other officials to pledge allegiance to the city and uphold the Basic Law.
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Beijing could also require lawmakers to be patriotic as defined by late leader Deng Xiaoping.
The changes could lead to the disqualification of four opposition lawmakers who were earlier barred from contesting the now-postponed Legislative Council elections originally slated for September.
Opposition legislators have vowed to resign en masse if Beijing carried out its plans.
Pro-establishment lawmaker Leung Che-cheung expressed frustration over the delaying tactics.
“It cost the opposition nothing to make quorum calls, while we have to sit still in the council for more than eight hours a day,” he said. “It’s been in a state of semi-paralysis.”
The mechanism for kicking out lawmakers is found in Article 79 of the Basic Law. It allows for the Legco president to declare a lawmaker no longer fit for office under a range of circumstances, such as serious illness or bankruptcy.
But to disqualify a legislator censured for misbehaviour or breach of oath requires approval of two-thirds of Legco members.
Currently, 62 lawmakers sit in the legislature, including 19 from the opposition camp and two pro-democracy independents. The pro-establishment camp only occupies 41 seats, one short of a two-third majority.
“If a person has already become a Legco member, it seems that the means and grounds to disqualify him or her are set out in Article 79 of the Basic Law,” said Lin Feng, associate dean of the City University’s law school.
But the question remains of how else disqualification might work. Observers noted that former chief executive Leung Chun-ying, now a vice-chairman to China’s top political advisory body, took six lawmakers to court in 2016-17 over improper oath-taking, which resulted in the court ousting all six.
They were Yau Wai-ching, Sixtus Baggio Leung Chung-hang, Edward Yiu Chung-yim, Lau Siu-lai, Leung Kwok-hung and Nathan Law Kwun-chung.
The series of disqualifications came after the standing committee interpreted Article 104 to rule that public officers must take their oaths “sincerely”.
Yet Lin noted this time around the concern was not improper oath-taking, but Beijing’s perception that legislators could have breached properly taken vows.
“The difference is that the 2016 disqualifications were on the grounds that those six people failed to take their oaths according to law and therefore had not properly become Legco members,” he said.
Under the Oaths and Declarations Ordinance, lawmakers need to pledge they will serve Hong Kong “conscientiously, dutifully, in full accordance with the law, honestly and with integrity”.
The ordinance states any public officer, lawmakers included, who declines or neglects to duly take an oath shall be vacated from office or be disqualified from entering on it.
It is also debatable how filibustering in the legislature could constitute a breach of oath and how a lawmaker might be judged a patriot under a common law legal system.
Hong Kong Bar Association chairman and veteran human rights barrister Philip Dykes SC called Article 79 “a comprehensive code for unseating Legco members”. Any attempt to bypass that would be “unconstitutional”, he said.
He said the existing system had already covered the cases Beijing would like to make.
If the allegation was obstructing the business of Legco was a breach of oath, the Legco president could make such a declaration to put the censuring motion to vote.
“I do not see the need for devising a new procedure for unseating a Legco member,” he said.
Former Bar Association chair Ronny Tong Ka-wah, a member of the city leader’s de facto cabinet, the Executive Council, warned it would be undesirable if Beijing ended up issuing a legal interpretation contrary to how Article 79 was understood.
Tong said whether filibustering amounted to a breach of the oath depended on its severity. But he advised against Beijing’s move due to the “sensitive” political climate in the city.
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