tim's experiment

Risking serious brain damage, I endeavoured to read the Court of Appeal’s findings in the case of Leung Kwok-Hung, alias “Long Hair” and the Secretary for Justice, alias one of the PRC’s local poodles.

Frankly I do not recommend this, unless you are having serious difficulty in getting to sleep. Most of it is dauntingly technical. One finds one’s attention wandering.

Mr Leung was one of the six legislators disqualified for irregularities in their taking of the oath of office required of legislators in our system, following an “interpretation” by the National People’s Congress Standing Committee which added detailed requirements to the procedure stipulated in the Oaths and Declarations Ordinance.

Most of the judgement is devoted, if I have understood it correctly, to the question whether the “interpretation” added to the law or merely clarified it, and whether in any case this made any difference.

These points are discussed at great length with detailed reference to past decisions of various courts. This I fear leaves the lay reader with the impression that Hong Kong judges could have saved us all a lot of trouble if they had wheeled out some years ago something along the lines of James I’s observation that “Kings are not only God’s lieutenants upon earth, and sit upon God’s throne, but even by God himself they are called gods.”

With, of course, the NPSC inserted in the place of the King.

It is a characteristic of legal arguments that people are allowed to try different approaches, not necessarily compatible with each other, in the hope that one of them will be acceptable to the court. There is a danger that in rejecting a variety of different arguments the court will appear to be guided more by the desire to achieve a particular result than the merits of the points put forward.

No doubt the appearance is misleading. I was dismayed to discover, however, that in the closing — less technical – stages the court seemed to have flatly contradicted itself

Consider this paragraph: “Neither the Clerk nor the President of the Legco has any discretionary power to determine whether a legislator-elect has declined or neglected to take the Legco Oath under section 21 of ODO … they are oath administrators.  And it is for the courts, and the courts alone, to determine if the constitutional requirements under BL104 and the legal requirements under the ODO have been satisfied.”

Now this is a puzzle. The clerk or the president has in the past refused to accept particular oaths as valid. Under the old dispensation this led to the legislator concerned being required to take the oath again. And later on in the judgement the clerk’s discretion has magically reappeared:

“As pointed out by Mr Yu, the Clerk did not provide any reasons why he considered the appellant’s Oath taking was valid.  It is thus not clear why he so decided.  In the circumstances, his decision is of little weight to the Judge.  Since the whole episode of how the appellant purported to take the Legco Oath was recorded by transcript and videotape, the Judge was in as good a position as the Clerk to view and assess the appellant’s conduct.”

This paragraph is meaningless unless the Clerk had some right to reject oaths he was not happy with. If he made a “decision” then there must have been the possibility of rejection. I do not blame the clerk for not giving a reason and it seem odd to expect it. A reason must be given for rejecting the oath. Accepting it is the default option. Nobody complained at the time.

I am concerned by the appearance of what might be considered by an uncharitable observer a measure of judicial arrogance. Leaving aside the centuries-old tradition that the courts do not intervene in the internal affairs of the legislature, there are practical problems with judges setting themselves up as a sort of video assistant referee for legislative oath-taking.

The first one is rather specific: they are political eunuchs, and expected to be such. This leads to potential misunderstandings. The Court of Appeal seems, for example, to have been quite upset that Mr Leung took his oath (or as we must now say “purported to take the oath”) holding a yellow umbrella.  But of course beholders of the proceedings would have been perfectly well aware that this was simply a symbol of his political views, just as other legislators might wear blue ribbons or Mao badges. Solemnity is in the eye of the politically literate beholder.

A more serious objection is to the time involved. VAR in football matches has been greeted with mixed feelings because the teams have to stand around for a few minutes waiting for the assistant referee’s verdict. It spoils the flow of the game.

But the few minutes spent by football assistant referees are a mere millisecond compared with the time it takes to get a definitive view out of the legal system.

Mr Leung was elected in September 2016. He swore, or did not swear, the Oath on October 12. On November 7 the NPCSC issued its interpretation. The government’s lawyers then sprang into action and Mr Leung was disqualified on July 14 2017. He appealed in September last year. The judgement of the Court of Appeal has just emerged.

Mr Leung proposes to try a further appeal to the Court of Final Appeal, as he is entitled to do. Even if permission for this is refused it will take another two or three months. These days it takes the government at least six months to hold a by-election, sometimes longer.

The overall effect of this is that the electors in Mr Leung’s constituency, who happen to include me, have been under-represented in Legco for nearly three years and may well stay that way until the end of this year or the beginning of the next one.  By which time, alas, the newly elected replacement legislator will barely have time to get his feet under the desk before another election looms.

Indeed, if the Court of Final Appeal does decide to consider the matter, the vacancy may arrive so late that our leaders, whose adherence to democracy is increasingly questionable, may simply decide to leave the seat empty until the next territory-wide poll.

And this slow-motion procedure at enormous expense to the member concerned presents, to put it mildly, something of a temptation to people who would like a legislature purged of inconvenient members, although the preventive disqualification system seems to be achieving that already.

I wonder how many people will wish to continue to vote when the results of their efforts are treated with such contempt.