The decision by the Legislative Council Commission to seek multi-million dollar refunds from four disqualified Legco Members scores a rare triple whammy: it is morally reprehensible, legally doubtful, and potentially a spectacular political own goal.
Announcing the decision, Legco President Andrew Leung Kwan Yuen confirmed that the bid to seek reimbursement from the four of salaries and allowances paid would be retrospective to 1 October last year. However there would be no similar effort to retroactively undo all the things that they had done while acting as members.
There is no logic to the Commission’s position: either the four were members, entitled to draw salaries, hire staff, rent offices, purchase equipment and so on, thereby incurring legitimately all the expenditure in question, or they were not in which case everything they did needs to be unravelled.
It is worth reminding ourselves how we arrived at the present situation. In fairness it should be remembered that it began when the four members in question -- Nathan Law Kwun Chung, Leung Kwok Hung, Lau Siu Lai and Edward Yiu Chung Yim -- took their oaths of office in a variety of rather silly ways -- long pauses between words, suddenly going falsetto etc. – instead of in a solemn and serious manner. They were taking the opportunity of the ceremony to make a political gesture. The president accepted their oaths at the time deeming it better to get on with public business rather than make martyrs out of them. But this was insufficient for others including government officials, who took it upon themselves to challenge the validity of the oaths in court. Once that happened, the legal outcome was inevitable as there was already relevant case law in Hong Kong to ensure disqualification.
The NPC Standing Committee jumped in with its unnecessary ruling as well, thereby ensuring politicisation of the whole exercise.
President Leung is unusually badly placed to be involved in the process of what should happen next as it was he who originally accepted their oaths of office as legitimate. That surely makes him at least as culpable as the disqualified four.
But now the story starts to turn sinister. The four are all manifestly not well off and certainly unable to repay the sums involved ranging from $2.7 to $3.1 million each. The money was actually spent so it is not just lying around in a bank account awaiting collection. There are already murmurings that if the case is pursued, all four would face bankruptcy. Thus not only would they be barred from seeking public office in future, their earning capacity would be severely adversely affected for the rest of their lives. Considering that three of them are still relatively young, the punishment would be totally disproportionate to the crime.
President Leung, by contrast, is a well-to-do businessman who could pay up, if necessary on behalf of everyone – but he is not writing to himself to suggest such a thing. Well fancy that!
Giving as an excuse that the Commission has no alternative but to pursue return of the sums because "public money is involved" is a masterstroke of illogicality. How can it make sense to spend millions more on court proceedings which are known from the outset to be useless as those involved do not have the money? Common sense – a commodity rare throughout thus far – says the wisest thing to do now, especially bearing in mind the culpability of their own president, would be for Legco to stop right away. All this in a Council which cheerfully funds cost overruns running into billions compared to which the $12 million at stake here is pocket change.
If the case does proceed to court, at further cost to taxpayers, the outcome is far from certain. How will surviving Members feel if they lose – by no means a remote possibility -- and besides not getting back the salaries and expenses are also ordered to pay costs of the defendants?
In addition to any financial penalty, there would also be a political cost which the pro government forces would have to pay at the next election. It never ceases to amaze me how often personalities on all sides of the political spectrum continue to underrate the intelligence and common sense of Hong Kong people.
The pan democrats are making this mistake now with their continuing mindless opposition to the practical co-location immigration arrangement at the high speed rail terminus in West Kowloon. And the pro administration members can come up with as many excuses as they like but local people will see the reclaim exercise for what it is: political persecution. The message the proponents would be sending to our young people is: not only can we stop you doing the things you want to do, however well intentioned, if you oppose us we will smash you. At the last minute, some members seemed to realise what a politically dangerous course they were pursuing and began to hint at possible compromises.
In the local political environment, political persecution is not acceptable. Unless the reclaim hawks draw back, they risk an adverse judgement in future elections from the ordinary men and women of Hong Kong.