Bar Says Legco Expulsions Violate Due Process

The Bar Association has hit out at the disqualification of four pan-democratic lawmakers, saying the decision violates the principle of due process that's an inherent part of the rule of law and gave undue importance to controversial decisions by election officers.

The body, which represents the SAR's barristers, made the comment after Alvin Yeung, Dennis Kwok, Kwok Ka-ki and Kenneth Leung were forced out of office by the government on the basis of a National People’s Congress Standing Committee (NPCSC) resolution.

Chief Executive Carrie Lam had sought a ruling from the committee after returning officers barred the four from standing in September's Legislative Council election before it was postponed due to Covid-19.

On Wednesday, the NPCSC resolved that all public officers must support the Basic Law and be loyal to the SAR. It said they would be deemed unfit for office if they supported Hong Kong independence, sought foreign interference, refused to accept China's sovereignty over the territory, or threatened national security.

It specified that the decision applied to the four lawmakers and their continuing presence in Legco after its term was extended by a year.

In a statement released on Thursday night, the Bar Association said the decision had “greatly impaired” legal certainty, and gave too much weight to decisions by election officers.

“As a result of the government’s approach and with the decision, the role of executive officials – the returning officers in this case – have been effectively and illegitimately elevated to being decisions of constitutional importance when those decisions have not been reviewed by the Courts nor are they free from controversy,” the association said.

The association noted the returning officers in question were not even required to deal with questions relating to the present extended term of Legco at the time.

The association pointed out that Article 79 of the Basic Law sets out the circumstances under which a legislator may be disqualified from office, but the government’s approach introduces “an entirely different way to disqualify a legislator… without due process”, and denied the four an opportunity to be heard.

This “violates the basic principles of fairness and due process inherent in the Rule of Law,” the statement said.

Henry Tang, a delegate of Beijing’s top advisory body, dismissed the association's claim that Beijing's move had violated the basic principles of fairness and due process.

The former chief secretary, who's now a Standing Committee member of the Chinese People's Political Consultative Conference, referred to a comment made by Basic Law Committee vice-chairwoman Maria Tam on Thursday that the four ousted lawmakers could take the matter to Hong Kong's courts.

While agreeing with this, Tang disputed Tam's assertion that the four would, however, be unlikely to win.

"I would not jump to any conclusion ... if they decide to launch a judicial review, it would be up to our judiciary to make that decision," he said.

Tam had echoed comments made by Beijing officials that decisions taken by the NPCSC are "not challengeable".