Although the president of Hong Kong’s legislature, Andrew Leung Kwan-yuen, says the Legislative Council Commission acted on legal advice in seeking the full repayment of salaries and allowances from four disqualified lawmakers, the advice has been queried in some quarters.
The fact remains that the disqualification of Nathan Law Kwun-chung, Leung Kwok-hung, Lau Siu-lai and Edward Yiu Chung-yim meant that their original election was void. As such, they were disentitled to the sums paid, and the commission is within its rights in seeking their return, however imprudent that course may be.
But this is not its only course.
In October, several lawmakers in Australia, including the deputy prime minister Barnaby Joyce, also lost their seats. The Australian High Court decided they were ineligible because they were dual nationals, which is constitutionally prohibited. As the ejected lawmakers had already taken part in parliamentary proceedings for over a year, the repayment of salaries and entitlements would, if enforced, be a significant burden for them.
A similar situation also arose in April, when the High Court – for constitutional reasons unrelated to citizenship – found that Senator Bob Day had not been validly elected in 2016. Although the question of repayment arose, the responsible minister, Scott Ryan, said it would be unfair of the government to pursue the debt, given that Day had discharged his senatorial duties “in good faith”.
In Australia, the convention is to waive such debt. Ousted parliamentarians are given two options: pay up or apply for a waiver from the government. Provided there is no evidence of bad faith, the application of a waiver will normally be granted.
In Hong Kong, the four lawmakers seemingly acted in good faith in the Legislative Council after they were sworn in. Although they took their oaths in an irregular fashion, with two being required to retake them, they were all nonetheless ultimately seated. By contrast, the extreme antics of two other lawmakers, Sixtus Baggio Leung Chung-hang and Yau Wai-ching, at their oath-taking resulted in them being excluded altogether.
The four seated legislators would have assumed that they had been accepted as Legco members.
In these circumstances, the Australian approach provides valuable guidance for the Legco commission, which should now reconsider its demands in light of it. This, after all, was not a case in which someone tricked their way into Legco, as happened in 1985, when Tai Chin-wah, having falsely represented himself to be a solicitor, was elected to the chamber. He was unmasked six years later.
There can be no possible objection to the commission enforcing repayment of the debts owed by Sixtus Baggio Leung and Yau, whose abusive conduct violated basic norms. Their four colleagues, however, were not in that category, as the Legco president himself accepted. Ejection from Legco is itself a severe sanction, and basic fairness requires the waiver of the debts.
If, however, this does not happen, it is fanciful for people to suggest that Legco proceedings in which the four participated should be retroactively undone. Even if feasible, this would produce chaos.
In 1907, the Australian High Court resolved this very issue when it ruled that votes on legislation remain valid, even if a parliamentarian is subsequently deemed to have been invalidly elected, and this remains good law. As the judgment put it, “the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title”.
Grenville Cross SC is a criminal justice analyst