5. CONSTITUTIONAL INTERPRETATION (II)
1. KEY CASE: CHIEF EXECUTIVE OF HKSAR V PRESIDENT OF THE LEGISLATIVE COUNCIL
Background
Facts Leung Chung Hang and Yau Wai Ching were elected in their respective geographical constituencies in the
general election for the Legislative Council. In the first meeting of the LegCo, they were asked to take the
LegCo Oath before the Clerk of the Lego. Both purported to do so, but in way and manners which departed
substantially from the statutory contents of the LegCo Oath and evinced objectively an intention on their
respective parts not to be bound by it. After an expedited hearing, the Judge concluded in his judgment that
what Leung and Yau did amounted to their respectively declining or “wilfully” omitting to take the LegCo
Oath, therefore disqualifying themselves.
Releva Section 19 of the Oaths and Declaration Ordinance:
nt Laws A member of the Legislative Council shall, as soon as possible after the commencement of his term of office,
take the Legislative Council Oath which –
a) If taken at the first sitting of the session of the Legislative Council immediately after a general election of
all members of the Council and before the election of the President of the Council, shall be administered
by the Clerk to the Council
b) If taken at any other sitting of the Council, shall be administered by the President of the Council or any
member acting in his place.
Section 21 of the Oaths and Declaration Ordinance:
a) If he has already entered on his office, vacate it, and
b) If he has not entered on his office, be disqualified from entering on it.
Article 104 of the Basic Law:
When assuming office, the Chief Executive, principal officials, members of the Executive Council and the
Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong
Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong
Special Administrative region of the People’s Republic of China and swear allegiance to the Hong Kong Special
Administrative Region of the People’s Republic of China.
Issue 1) Whether Article 104 is a Constitutional Requirement
Argument 1: Non Intervention
Leung’s v The principle of non-intervention applied to the present case so that the judge was wrong to interfere
and with the internal workings or business of the LegCo, that is, the taking or the retaking of the LegCo Oath
Yau’s by Leung.
Argum v Section 21 of the Ordinance does not form part of the constitutional requirement under article 104.
ents v Neither the Clerk nor the President had determined that Leung had declined or neglected to take the
LegCo Oath on 12 October 2016, whereas Leung had indicated in evidence that he had been “ready,
prepared and willing” to take the Oath afresh at the next meeting and had not “declined” no “neglected”
to do so
v Whether the interpretation has retrospective effect in the sense that it covers the present case now
before the court, and whether it is truly an interpretation falling within the meaning of article 158 of
the BL
CE The applicants’ arguments essentially raised several subject matters, that is, the non-intervention principle;
Argum the role of the administrator; whether vacation of the office is automatic under s.21 of the Ordinance; the
ents scope of application of s.73 of the LegCo Ordinance; and the immunity from suit under article 77 of the BL
Court’s Analysis
Principl Basic The court respects and recognise the exclusive authority of the legislature in managing its own
e of Premise internal processes in the conduct of its business. The court will not intervene to rule on the
Non- regularity or irregularity of the internal processes of the legislature but will leave it to determine
interve exclusively for itself matters of this kind. On a practical level, this principle allows the legislature
ntion to be left freely to manage and to resolve its internal affairs, free from intervention by the courts
and from the possible disruption, delays and uncertainties which could result from such
intervention.
Hong However, in a jurisdiction like Hong Kong where a written constitution (that is, the Basic Law),
Kong’s rather than the legislature, is supreme, where the rule of law reigns and where the courts are
Case given under the constitution the independent power of adjudication, this principle of non-
intervention has its own inherent limit.
Chloe T 19
1. KEY CASE: CHIEF EXECUTIVE OF HKSAR V PRESIDENT OF THE LEGISLATIVE COUNCIL
Background
Facts Leung Chung Hang and Yau Wai Ching were elected in their respective geographical constituencies in the
general election for the Legislative Council. In the first meeting of the LegCo, they were asked to take the
LegCo Oath before the Clerk of the Lego. Both purported to do so, but in way and manners which departed
substantially from the statutory contents of the LegCo Oath and evinced objectively an intention on their
respective parts not to be bound by it. After an expedited hearing, the Judge concluded in his judgment that
what Leung and Yau did amounted to their respectively declining or “wilfully” omitting to take the LegCo
Oath, therefore disqualifying themselves.
Releva Section 19 of the Oaths and Declaration Ordinance:
nt Laws A member of the Legislative Council shall, as soon as possible after the commencement of his term of office,
take the Legislative Council Oath which –
a) If taken at the first sitting of the session of the Legislative Council immediately after a general election of
all members of the Council and before the election of the President of the Council, shall be administered
by the Clerk to the Council
b) If taken at any other sitting of the Council, shall be administered by the President of the Council or any
member acting in his place.
Section 21 of the Oaths and Declaration Ordinance:
a) If he has already entered on his office, vacate it, and
b) If he has not entered on his office, be disqualified from entering on it.
Article 104 of the Basic Law:
When assuming office, the Chief Executive, principal officials, members of the Executive Council and the
Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong
Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong
Special Administrative region of the People’s Republic of China and swear allegiance to the Hong Kong Special
Administrative Region of the People’s Republic of China.
Issue 1) Whether Article 104 is a Constitutional Requirement
Argument 1: Non Intervention
Leung’s v The principle of non-intervention applied to the present case so that the judge was wrong to interfere
and with the internal workings or business of the LegCo, that is, the taking or the retaking of the LegCo Oath
Yau’s by Leung.
Argum v Section 21 of the Ordinance does not form part of the constitutional requirement under article 104.
ents v Neither the Clerk nor the President had determined that Leung had declined or neglected to take the
LegCo Oath on 12 October 2016, whereas Leung had indicated in evidence that he had been “ready,
prepared and willing” to take the Oath afresh at the next meeting and had not “declined” no “neglected”
to do so
v Whether the interpretation has retrospective effect in the sense that it covers the present case now
before the court, and whether it is truly an interpretation falling within the meaning of article 158 of
the BL
CE The applicants’ arguments essentially raised several subject matters, that is, the non-intervention principle;
Argum the role of the administrator; whether vacation of the office is automatic under s.21 of the Ordinance; the
ents scope of application of s.73 of the LegCo Ordinance; and the immunity from suit under article 77 of the BL
Court’s Analysis
Principl Basic The court respects and recognise the exclusive authority of the legislature in managing its own
e of Premise internal processes in the conduct of its business. The court will not intervene to rule on the
Non- regularity or irregularity of the internal processes of the legislature but will leave it to determine
interve exclusively for itself matters of this kind. On a practical level, this principle allows the legislature
ntion to be left freely to manage and to resolve its internal affairs, free from intervention by the courts
and from the possible disruption, delays and uncertainties which could result from such
intervention.
Hong However, in a jurisdiction like Hong Kong where a written constitution (that is, the Basic Law),
Kong’s rather than the legislature, is supreme, where the rule of law reigns and where the courts are
Case given under the constitution the independent power of adjudication, this principle of non-
intervention has its own inherent limit.
Chloe T 19
