CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL

CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL

The court held that Leung and Yau intentionally declined or neglected to take the Legislative Council Oath in form and substance on 12 October 2016; consequently under s21 ODO they vacated or were disqualified from the office with effect from that date, the President's decision to permit re-taking was unlawful and amenable to judicial review, and the court has jurisdiction to decide these issues notwithstanding the non-intervention principle.

Citation
CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL
Parties
Applicant/plaintiff: Chief Executive of the Hong Kong Special Administrative Region; Applicant/plaintiff: Secretary for Justice; Respondent/defendant: President of the Legislative Council; Interested Party/defendant: Sixtus Leung Chung Hang; Interested Party/defendant: Yau Wai Ching
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 November 2016
Case Number
HCAL185/2016
Procedural Posture
Constitutional and Administrative Law Judicial Review and Section 73 Proceedings / Final Judgment (15 November 2016)
Outcome
Declarations and injunctive relief granted for the applicants; President's decision quashed; costs awarded to applicants with apportionment
Legal Topics
Oath Taking, Disqualification of Officeholders, Judicial Review, Non Intervention Principle, Basic Law Interpretation, Standing/locus
Source Language
EN
Constitutional Law Administrative Law Electoral Law Statutory Interpretation Oath Taking Disqualification of Officeholders Judicial Review Non Intervention Principle +2 more

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Parties

Chief Executive of the Hong Kong Special Administrative Region

Applicant/plaintiff

Secretary for Justice

Applicant/plaintiff

President of the Legislative Council

Respondent/defendant

Sixtus Leung Chung Hang

Interested Party/defendant

Yau Wai Ching

Interested Party/defendant

Procedural Posture

Constitutional and Administrative Law Judicial Review and Section 73 Proceedings / Final Judgment (15 November 2016)

Legal Issues

  1. 1 Whether the oaths taken by Sixtus Leung and Yau Wai Ching on 12 October 2016 complied with Basic Law Article 104 and the Oaths and Declarations Ordinance
  2. 2 Whether, under s21 ODO, a member who declines or neglects to take the oath vacates office or is disqualified as a matter of law
  3. 3 Whether the President or person administering the oath is the final arbiter of validity of the oath and whether the President could permit re-taking

Ratio Decidendi

The court held that Leung and Yau intentionally declined or neglected to take the Legislative Council Oath in form and substance on 12 October 2016; consequently under s21 ODO they vacated or were disqualified from the office with effect from that date, the President's decision to permit re-taking was unlawful and amenable to judicial review, and the court has jurisdiction to decide these issues notwithstanding the non-intervention principle.

Court Disposition

Declarations and injunctive relief granted for the applicants; President's decision quashed; costs awarded to applicants with apportionment

Orders

  • Declaration that the oaths purportedly taken by Sixtus Leung Chung Hang and Yau Wai Ching on 12 October 2016 were invalid and void and of no legal effect as the Legislative Council Oath required by Basic Law Article 104 and the Oaths and Declarations Ordinance
  • Declaration that Sixtus Leung Chung Hang and Yau Wai Ching have been disqualified from assuming the office of member of the Legislative Council and that their offices have been vacated since 12 October 2016 and that they are not entitled to act as members