• Instant Disqualification-a Tribute to Henry VIII|戴啟思
  • 2020-11-14    

  • Instant Disqualification-a Tribute to Henry VIII|戴啟思

 

When the Chief Executive kicked out four lawmakers from Legco a few days ago after having been given the green light by the Standing Committee of the National People’s Congress just a few minutes before, I searched for a legal precedent for such a swift and summary expulsive process.

I could find without too much trouble several cases of lawmakers expelled from law-making bodies for criminal acts or bad behaviour.

In all these cases, the bad-boy lawmakers-for all I found concerned men-were given an opportunity to defend themselves before a law-making body before being expelled from it. In legal language, the legislature gave the errant lawmakers ‘due process’ before they were convicted and sent on their various ways.

Due process means that a body seeking a lawmaker’s expulsion must identify grounds for removal in a legal document and then give the lawmaker an opportunity to refute them or otherwise explain relevant conduct or, if the conduct is admitted, ask for leniency if expulsion is not automatic and suspension from the legislature is an option.

When a Legco member is accused of misconduct or, more relevantly, a breach of his or her official oath, a formal charge is drawn up and details of the alleged misconduct or breach of oath, as the case may be, are set out in full in a document attached to the charge.

The member then does their best to answer the charge and its details and is given time to present a case. At the end of the procedure, the other members present vote on expulsion, two-thirds of them being needed to vote in favour of a resolution that the member is no longer fit to hold office.

As I hope that you can see, there is nothing overly technical about due process. It is common-sense fairness in action. You know instinctively that you have to give a person facing a charge, or the possible loss of a position, a chance to persuade you that you should not do that.

I had to go back to the days of the English King, Henry VIII, to find a comparable legal process to that adopted by the Chief Executive. Then, nearly five hundred years ago, Parliament was firmly under the control of the king. It made laws that gave effect to the King’s will when asked to do so.

King Henry asked Parliament on a number of occasions to enact bills of attainder or, if in a generous mood, bills of pains and penalties. He attainted about 100 persons in his 38 year reign, including his wives Anne Boleyn and Catherine Howard.

A bill of attainder accused a person of a serious crime, usually treason. iT started a process which recorded Parliament’s deliberations on the offence ending with a guilty verdict, the inevitable death penalty, the confiscation of the attainted person’s real and personal property and a declaration that that person’s heirs could not inherit anything through the attainted person. (This last penalty was called ‘corruption of the blood’ because the penalty affected the blood line of the person attainted.) A bill of pains and penalties imposed less severe penalties.

The whole point about a bill of attainder or a bill of pains and penalties was that it skipped the idea of a hearing and the accused attempting to mount a defence. The accused person had no right to attend Parliament to dispute allegations or ask persons to speak there on his behalf.

The process had a veneer of legal respectability. Historically, Parliament was a court. Its proper name was the ‘High Court in Parliament’ which dated back to the 13th century when the king and his advisers in Parliament sometimes heard legal cases.

By the time of King Henry VIII, common law courts with judges and lawyers were doing nearly all of the judicial work of the kingdom and the judicial work in Parliament was diminishing. Bills of attainder and bills of pains and penalties were a curious blend of law making and summary legal process in that the end result was a legislative act validating what was, procedurally, an extremely attenuated hearing of condemnation.

Bills of attainder and pains and penalties fell into disuse in the 17th and 18th centuries when Parliament was no longer at the beck and call of the monarch and people felt uneasy at invoking a process which was so patently unfair and seemed to be used only to settle political scores.

Bills of attainder and pains and penalties had, however, not died out in England at the time the colonies in New England, the Carolinas and Virginia received common law. Colonial histories show that attainders were used to suppress political figures up until the American Revolution.

The authors of the American Constitution had no legal space to accommodate these patently unfair procedures. Article I, Section 9, Clause 3 of the Constitution (the Bill of Attainder Clause) states: “No Bill of Attainder or ex post facto Law shall be passed.”

Because of the constitutional prohibition, USA courts have had the opportunity from time to time to rule on whether legislation amounts to an attainder because it picks out individuals and subjects them to punishment without any kind of due process.

As recently as 2019, lawyers for Huawei filed an action complaining of a law that prohibited that company from doing business with federal concerns. The argument was that the law was not of general application-the target was only Huawei-and it inflicted a penalty-the loss of the right to trade-without the company having had the right to be heard in the legislative process that condemned it.

The US courts have extended the reach of the prohibition to executive acts as well. If, so the thinking goes, a legislature cannot inflict a penalty on a named individual by an attainder or bill of pains and penalties, the executive cannot be in a better position than the legislature when it comes to singling out individuals for punishment without due process.

US lawyers have argued, plausibly, that selecting ‘rogue’ US Citizens who have joined Islamic forces in the Middle East which are hostile to American interests and placing those citizens on a blacklist for lethal drone strikes offends the ‘no attainder’ clause in the Constitution because there is no due process in selecting them.

A court challenge to the Chief Executive’s selection of the four lawmakers seems unlikely. This is because the bloc of pro-democracy legislators have announced an intention to resign their posts in sympathy. There is no logic in the four lawmakers trying to regain their seats when their colleagues have resigned on account of their disqualification.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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