高等法院原訟庭昨日裁定劉小麗、羅冠聰、梁國雄及姚松炎四名議員的宣誓無效,失去議員資格。法官區慶祥指出,根據《基本法》第104條及人大常委會上年11月的解釋,宣誓人必須

(1)準確、完整地宣讀法定誓言(「嚴格形式和內容規定」);
(2)真誠、莊重地進行宣誓(「莊重規定」);
(3)並真誠相信及履行誓詞承諾(「實質信念規定」)。
區官指,羅冠聰將「中華人民共和國香港特別行政區」中的「國」字聲調提高並作出開場白和結束辭,表達出他對中華人民共和國作為香港特別行政區的合法主權國的地位的質疑,沒有展示真誠履行誓言中的責任的意圖。梁國雄被指在宣誓時撐傘、叫口號,而口號作為宣誓的一部分,因此不符合規定(1)和(2)。至於,劉小麗及姚松炎則分別因故意慢讀及用其他方式加入和讀出額外字句,違反規定(3) 和 (1)。劉小麗等4人已表明會上訴。
連同早前失去議席的青年新政梁頌恆和游蕙禎,非建制派先後有6位議員被褫奪議員資格。分析指,泛民將會歷史性地失去在地區直選的分組點票「否決權」。修改議事規則及議員私人草案需要在分組點票才能通過。目前民主派在直選只餘下14席,比建制派少2席。假若政府一併重選6席,新界東和九龍西將各有2個席位(梁國雄、梁頌恆;劉小麗、游蕙禎)供競逐。民主派預計只能各取1席,建制派在直選議席取得過半數。政府表示會在法庭有最終裁決後才決定補選安排。因此,政府會否一併進行補選,仍是未知之數。
泛民主派批評批評人大釋法濫用司法程序,改變選舉結果,認為做法「可恥」。部分議員把矛頭直指新上任的特區政府,指「政府的做法」有如向市民宣戰,並指會在議會推動不合作運動,重新開始拉布。特首林鄭月娥回應裁決指,無論行政長官或政府官員都不應因為要建立友好關係而在法治上作出妥協。她強調,建立橋樑要依法進行,表示不會與議員商討解決宣誓問題。
是次判決進一步顯示釋法對於法治可能造成的破壞。同時,法庭判決無疑是對銳意改善行政立法關係的新政府來說的一大打擊。平心而論,是次司法覆核由前特首梁振英及律政司提出,新政府在是次官司的角色有限;基於司法獨立的原則,特首的確不應該也無權干預法庭判決,而泛民主派亦難以責怪林鄭月娥。究竟新政府過去兩週試圖修補行政立法關係的手段會否功虧一貴,除了視乎林鄭月娥政府如何應對,更視乎泛民主派能否以事論事,以及公眾對於事件的輿論壓力。但無論如何,宣誓覆核案必定會在短期內重塑香港的政治氣候。
釋法懶人包 | CUHKCAS
https://goo.gl/VuFvee

DQ案專頁 | 《香港01》
https://goo.gl/u4pAuA

Court ruling disqualifying Hong Kong lawmakers over oath-taking controversy ‘a declaration of war’ | South China Morning Post
https://goo.gl/uhsDwb
【SNAPSHOTS 2017 | #4】Seats Without Legislators
Four more pro-democracy legislative council members including Lau-Siu-lai, Nathan Law Kwun-chung, Leung Kwok-hung “Long Hair” and Edward Yiu Chung-yim are removed from their seats over the oath-taking fiasco after the First Court of Instance’s ruling on Friday. Judge Au Hing-cheung stated that according to Article 104 of the Basic Law and its interpretation by the NPCSC, oath takers must:

(1) take the LegCo Oath in exactly the same form and content as prescribed (“the Exact Form and Content Requirement”);
(2) do it solemnly and sincerely (“the Solemnity Requirement”); and
(3) sincerely believe in and strictly abide by the pledges in the oath at the time of taking the oath (“the Substantive Belief Requirement”).
The respective ruling of the disqualifications go as follows. Nathan Law was accused of questioning the legitimacy of the PRC as the sovereign by pronouncing “Republic” as if asking a question. He was also disqualified for Including his own additional opening and closing speech. “Long Hair”, who held a yellow umbrella and shouted out slogans during his oath was considered a violation of Clause (1) and (2) above. For Lau Siu-lai and Edward Yiu, they were accused of reading the oath in slow speed and adding words into the original content respectively, violating Clause (3) and (1). All four defendants pledged to appeal.
With Leung Chung-hang and Yau Wai-ching of Youngspiration losing their seats in November, the anti-establishment now has lost six seats in total. This historical judgment has weakened their power in the Legislative Council of paramount scale as they have lost their veto power in Group Counting. From direct election, the anti-establishment camp now only has 14 seats, two less than their pro-Beijing counterpart. Those who hold the majority in both functional and geographical constituencies can subsequently amend “Rules of Procedures” and pass private bills in the Legislative Council, potentially changing the rules for filibustering against the opposition. If the Government decide to hold the by-election for all six vacant seats at once after the final ruling, it is expected that the anti-establishment camp will lose two seats, one each from the New Territories East and Kowloon West geographical constituencies, ultimately insufficient to regain majority.
Pan-democrats has described the interpretation of the Basic Law as “shameful” by allowing the Central Government to alter election results, putting more than 180,000 votes to waste. Certain legislators accused the Government of “declaring war” on the Hong Kong people, and will start protesting in the Council. The new Chief Executive Carrie Lam responded by stating she would not trade-off rule of law for friendlier relationships with the pan-democrats. She reiterates the importance of legislators abiding the current legal framework and will not attempt to negotiate with any offenders regarding the issue.
This recurrent scene from the interpretation of the Basic Law is believed by many to be a devastating blow on Hong Kong’s rule of law. The judicial review was proposed by former Chief Executive CY Leung and the Department of Justice. On the principles of judicial independence, the executive branch should and cannot interfere with the court’s decision. Hence, in all fairness, Carrie Lam and her new administration has little to be blamed for the oath-taking fiasco. The biggest question remains as whether this further disqualification of four legislators will hinder the new Government’s effort in building better relationship with the anti-establishment camp. On the other hand, it is also up to pan-democratic legislators to take the matter on its merits and maintain its popularity among voters. Regardless, this case will most definitely reshape Hong Kong’s political landscape in the coming short period of time.
Court ruling disqualifying Hong Kong lawmakers over oath-taking controversy ‘a declaration of war’ | South China Morning Post
https://goo.gl/uhsDwb

Hong Kong pro-democracy legislators disqualified from parliament | The Guardian
https://goo.gl/ej5Hxm

Once a Model City, Hong Kong is In Trouble | The New York Times
https://goo.gl/nEEvUJ

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