Court decision sparks opposition camp’s dog-eat-dog show

As Mark McKinnon, a US political adviser stated, “Hypocrisy is the scarlet letter in politics.” In Hong Kong, a tale of hypocrisy has been played out lately by two opposition lawmakers, Au Nok-hin and Gary Fan Kwok-wai. They were found by the Court of Final Appeal (CFA) to have been unduly elected to the Legislative Council — a ruling that followed Au’s and Fan’s failed efforts to quash the High Court’s decision reversing the disqualification of their opposition-camp allies, Agnes Chow Ting and Ventus Lau Wing-hong, respectively, in the LegCo by-elections in March 2018. This revealed the deliberate politicization of the legal arguments argued by Au and Fan in court, which were for the sole purpose of safeguarding their own LegCo seats with little regard for the soundness of their own legal arguments against the High Court decision.

The unseating of Au and Fan originates from the disqualification saga self-orchestrated by the opposition, when Nathan Law Kwun-chung and Sixtus Baggio Leung Chung-hang were ousted from LegCo for taking their swearing-in oaths improperly. Chow and Lau then stepped forward to contest the vacant seats in the LegCo by-elections, although their candidacies were invalidated by the returning officers who were not satisfied that they genuinely and truly intended to uphold the Basic Law, and pledge allegiance to the HKSAR as duly required by the Basic Law and the interpretation by the National People’s Congress Standing Committee in November 2016. Against this backdrop, Au and Fan, dubbed “Plan B” of Chow and Lau, stepped in the latters’ shoes and beat their political rivals and were elected until the CFA decision.

Despite the fervent chants of “political screening” against the government by our opposition, the CFA decision is a mirror revealing the oppositions’ selfishness and hypocrisy in seizing the power and perks of the LegCo seats.

Interestingly, while the High Court previously had ruled in favor of Chow and Lau on the invalidation of the disqualification by the government of their LegCo by-election candidacies on the ground that disallowing the duo from responding to questions from returning officers prior to their disqualification amounted to material irregularities, it was Au and Fan, but not the government, who lodged the appeal against Chow’s and Lau’s successful election petitions. Of course, what concerns the unseated pair in their futile appeal are hardly any substantive merits of the High Court’s decision but their unintended LegCo seat losses. Ironically, the triumph of Chow and Lau’s political cause at the same time mean the immediate stripping of Au and Fan’s LegCo seats. Even with a mouthful of justice and rule of law, with the LegCo election due to take place in September, what Chow and Lau care most about are their LegCo candidacies even though they are fully aware that the successes in their election petitions must result in the unseating of their “Plan B”. In short, before the court judges, our opposition camp has put on a dog-eat-dog show vying for its up-for-grabs meat prize — the LegCo seats.

Ridiculous as it is, by putting forth to the court for an option to challenge the returning officers’ decisions without unseating by taking into account the standing of the so-called “Plan B” of Chow, this is no different from politicizing our court, as under the rule of law in Hong Kong, any political factors, including an individual’s political background and whether one is “Plan B” of another, should never be considered by our court judges. As provided by Section 61(1) and (2) of the Legislative Council Ordinance, election petitions are the means by which an election of a LegCo member can be questioned. Once any one of the grounds by which the election of a LegCo member can be impugned is established, the court will then determine that the person whose election was challenged was not duly elected. In short, nowhere in the ordinance is the court given any discretion or power in these circumstances to allow that person to remain in office, as politically argued by our opposition.

As our opposition is known for leveling at our government over its own faults, it comes as little surprise that by drawing the typical political language of calling white as black, Au and Fan have hit out at the election petition system and even our government for their LegCo seat losses in the name of “political screening”. As British writer George Orwell once cautioned, “Political language is designed to make lies sound truthful and murder respectable.” One must acknowledge that the disqualification saga is attributed to the improper oath-takings of certain opposition lawmakers-elect that were held by High Court to have flouted the legal requirement under the Oath and Declarations Ordinance. In other words, without defying the law, neither the oath-taking cause celebre, nor the CFA decision that unseated Au and Fan, would have taken place. Thus, instead of castigating our government, if not our court, for its wrongdoing, our opposition bloc only has itself to blame for the entire melodrama self-orchestrated and triggered off by its unlawful oath-taking acts when assuming office as LegCo members.

Worse still, now that Au and Fan were held not duly elected and thus their LegCo seats vacancies need to be filled, this raises the question of whether and when a by-election should be held. According to the Legislative Council Ordinance, it does not specify when a by-election is necessary beyond saying that one need not be held within four months of the end of LegCo’s current term in September. Without any political consideration, our government should seriously evaluate if it is pragmatic and practical to hold a by-election and a general LegCo election in less than nine months by considering the necessary manpower and logistics involved. After all, Hong Kong is facing a flurry of socioeconomic problems, such as the housing conundrum and the plight of the underprivileged in making their ends meet. With our public interest in mind, should a colossal amount of taxpayers’ money be footed by our government for the political farce staged by the opposition bloc while the same sum could be invested in alleviating the socioeconomic ills in Hong Kong?

In a nutshell, despite the fervent chants of “political screening” against the government by our opposition, the CFA decision is a mirror revealing the oppositions’ selfishness and hypocrisy in seizing the power and perks of the LegCo seats. In garnering the LegCo seats, election petition, a formal legal procedure in ensuring fairness and integrity of the electoral process, when the decision of which turned against the opposition duo’s own political interests, is perceived as “loophole” to be fixed. With the forthcoming LegCo election to take place in less than a year, may our electorate, especially those who have cast their votes for the opposition bloc in the District Council elections, wake up and vote only for those who will place our society’s interests instead of their own.

The author is a Hong Kong practising solicitor, chairman of Y Legalites and vice-chairman of HK KOL Project. The views expressed in this piece are his own, and do not reflect the views of the law firm for which he works.

The views do not necessarily reflect those of China Daily.