Read the full judgment text of CACV 224/2016, CACV 225/2016, CACV 226/2016, CACV 227/2016 on BabelCite. This Court of Appeal judgment was delivered on 16 January 2017 before Cheung CJHC, Lam VP, Poon JA.
Constitutional law – Basic Law – article 104 – oath-taking by Legislative Council members – interpretation of the Basic Law by the Standing Committee of the National People's Congress (NPCSC) – leave to appeal to the Court of Final Appeal – 'great general or public importance' limb – 'or otherwise' limb – non-intervention principle – role of oath administrator versus court – automatic vacation of office – retrospectivity of NPCSC interpretation – distinction between interpretation and amendment of the Basic Law – 'one country, two systems' – whether the Interpretation is in substance an amendment of the Basic Law invalid for non-compliance with article 159 – whether the Hong Kong courts have jurisdiction to question the validity of an NPCSC interpretation – whether the Legco has exclusive control over oath-taking – whether section 15 of the Legislative Council Ordinance (Cap 542) is exhaustive of disqualification – whether the Chief Executive has locus to institute proceedings under article 48(2) of the Basic Law – whether solemnity and sincerity are required when taking the oath – two elected Legco members took modified oaths; the Chief Executive and Secretary for Justice brought proceedings seeking declarations that they had declined or neglected to take the Legco Oath with consequent disqualification; an NPCSC interpretation of article 104 was issued on 7 November 2016; the Court of Appeal in the Main Judgment dismissed their appeals with costs – applications for leave to appeal to the Court of Final Appeal – whether the non-intervention principle applies to the determination of whether a Legco member has declined or neglected to take the Legco Oath – held no, the non-intervention principle is subject to the constitutional requirements of the Basic Law and does not divest the courts of their constitutional duty to adjudicate compliance with article 104 – whether the court should accord deference to the oath administrator – held no, full merit review is required – whether vacation of office under s.21 of the Ordinance is automatic by operation of law – held yes – whether the Interpretation has retrospective effect – held yes, it dates from 1 July 1997 – whether the Interpretation is in substance an amendment of the Basic Law – held no, the validity of an NPCSC legislative interpretation can only be determined by reference to the Mainland system which permits supplementation – whether the courts have jurisdiction to question the NPCSC's interpretation – held no – whether s.15 of the Legislative Council Ordinance is exhaustive – held no – whether the Chief Executive has locus under article 48(2) – held yes in the present context – leave refused on both the 'great general or public importance' limb (for failure to show reasonable prospects of success) and the 'or otherwise' limb (following the usual practice of leaving the question to the Appeal Committee of the CFA) – costs ordered against Leung and Yau totalling HK$335,702, apportioned 25% to each of the four applications
Legal issues: Whether the non-intervention principle applies to determining if a Legco member has declined or neglected to take the Legco Oath under s.21 of the Ordinance · Roles of oath administrator and court in determining whether the oath was declined or neglected · Whether vacation of office under s.21 of the Ordinance is automatic by operation of law · Whether the NPCSC Interpretation has retrospective effect · Whether the NPCSC Interpretation is in substance an amendment of the Basic Law and thus invalid · Whether the courts have jurisdiction to determine that the Interpretation is an amendment of the Basic Law or not an interpretation of a local law · Whether the Legco has exclusive control over oath-taking by legislators · Whether a legislator can be adjudged to have declined or neglected to take the oath by reference to solemnity, sincerity, or conduct · Whether a legislator who declined or neglected to take the oath is automatically disqualified or ceases to hold office · Whether s.15 of the Legislative Council Ordinance is exhaustive of disqualification circumstances · Whether the Chief Executive has locus to bring proceedings under article 48(2) of the Basic Law
Outcome: Leave to appeal to the Court of Final Appeal refused for both Leung and Yau on both the 'great general or public importance' limb and the 'or otherwise' limb under s.22(1)(b) of the Court of Final Appeal Ordinance. All four notices of motion dismissed.
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