Consider oath-taking from ‘relaxed’, not ‘prescriptive’ view

By Gladys Li –

Still with the same aim as in Part I (“Who determines validity of oath under the law’), but may be a little less cool and dispassionate, I turn to the part of the Oaths and Declarations Ordinance (ODO) which provides for the oath which the Legislators have to take upon assuming office in Part IV of Schedule 2.

The form of oath reads as follows:

“ I swear that being a member of the Legislative Council of the Hong Kong Special Administrative Region of the People’s Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity.”

In Part 1, the essence of my argument was that within limits, the ODO enables an oath-taker to take the oath in the manner of his choice without the need on anyone’s part to enquire whether the oath is binding in conscience. Instead, the process of oath-taking is designed to ensure that whatever consequences or repercussions which are prescribed by law for breach of the oath can be brought home to the oath-taker irrespective of whether the oath-taker considered the oath to be binding in conscience or not. So construed, sincerity is not a pre-requisite and one simply looks to future conduct, not past to see whether the oath is breached. Neither is solemnity a pre-requisite. The ODO is silent on both.

Section 19 of the ODO which provides the requirement for a Member of the Legislative Council to take the Legislative Council Oath as soon as possible after the commencement of his term of office is in the part of the ODO which relates to “Promissory Oaths”. Other promissory oaths are specified in Schedule 2 for the Chief Executive, the Principal Officials, Executive Councillors and members of the Judiciary and for the Clerk and Deputy Clerk to the Executive Council. All of these oaths are called promissory oaths because the nature of the oath taken relates to future conduct as is clear from the words “ I will…” in all of these oaths.

No room for arbitrary application of sincerity standard in oath

Each of these persons will have been appointed through some process. For instance, in the case of judges and judicial officers, the Judicial Officers Recommendation Commission makes a recommendation for appointment by the Chief Executive. In the case of legislators, the process is one of election. The matter of qualification and eligibility for office is considered before the person assumes office and may be prescribed by the Basic Law and legislation. If society supports a legal requirement for office that the person should never have advocated independence or self-determination, let it be put to the test of a bill in the Legislative Council. Until then, if we treasure the Rule of Law as a core value, it cannot be imposed as a pre-requisite for taking office.

The administerer of the oath is not there to raise the threshold of solemnity to trip up the person with a nervous tic or whose life-time ambition has been achieved at the oath-taking ceremony and who proclaims ‘Hallelujah’ or who beats on a tambourine or who breaks out into a broad grin.

The administerer of the oath is a mere functionary whose role is not that of the gate-keeper of politically correct views or to enable through a back-door that which will not be passed through the front door of legislation. The administerer of the oath is not there to decide that persons considered to be qualified by whatever process has brought them to the point of oath-taking is by reason of past views unfit for office. There is no room for the arbitrary application of a standard of sincerity in taking the oath which was not clearly set out in law.

The common law has evolved to recognise and protect freedom of thought, conscience and expression. We have moved on from the time when the unfortunate Mr. Bradlaugh could not take his seat in Parliament because he was an avowed atheist who therefore could not swear by Almighty God. And the ODO reflects that we have moved on.

Oath law purpose not to keep people out of office

The purpose of the ODO is not to keep people out of office but to have the oath administered to the office holders. Therefore, a relaxed not a prescriptive view needs to be adopted when considering whether someone has taken the oath when requested. It will also be for others not the administerer of the oath to decide whether the office holder has fulfilled the oath. In the case of legislators, it is therefore a matter for the prior judgment of the voters at an election whether any person who is a candidate in that election will fulfil the oath which the elected legislator is required to take if the voters attach any importance at all to the words of the oath. A legislator may be censured for breach of oath by a vote of two-thirds of the members of the Legislative Council present in which event the President of the Legislative Council shall declare that the member is no longer qualified for the office. And of course, come the next election, if the voters consider that the member has breached the oath and the matter of breach of oath is of importance to them, they can express their views through the ballot box.

The legislature is supposed to serve as the place where the elected representatives, no matter who elected them, can debate and consider with differing opinions draft legislation and policy issues, matters which their electors consider of importance. It is no part of the constitutional order established under the Basic Law to use oath-taking as a means of screening out duly elected representatives of voters.

It is fundamental to the part of the Basic Law relating to the legislature of the HKSAR which is the Legislative Council that it is an elected body which has its own rules of procedure made by themselves under Article 75 of the Basic Law. None of the other oaths provided for in the ODO are prescribed for members of an elected body with such powers. Thus, the Legislative Council could provide (and may be does) for the manner of taking the oath including what must be worn, how to be solemn and the speed with which the words must be spoken; all could be done by rules of procedure. If there are no such requirements, it is the legislature as a whole which has decided either that there is no need for any such rules or that it is impossible to decide what they should be. It is doubtful whether it is for a Court to impose on the Legislative Council what requirements are implied when the Basic Law has empowered the body to decide these matters for itself.

If a legislator takes the oath in accordance with his or her understanding of what he or she is swearing to, (it being after all the promise of the legislator concerned) that must be sufficient to satisfy both the requirements of the Basic Law and the ODO in terms of oath-taking. If there are sufficient fellow legislators who take a different view of what the oath means and they consider that the person concerned is in breach of his or her oath, they can initiate the process of censure. In this way, even though there are differing views on what it means to uphold the Basic Law or to bear allegiance to the HKSAR, it does not matter. The majority view that the legislator is in breach will prevail even if those constituting the majority do not necessarily agree on what upholding the Basic Law or bearing allegiance means or in what respect the legislator has not fulfilled the promise in his oath.

The argument that anyone who advocates independence or self-determination for the HKSAR cannot possibly be willing to uphold the Basic Law or to bear allegiance to the HKSAR deserves to be considered against the background of some undeniable facts.

What does ‘uphold the Basic Law’ mean?

Leung and Yau have taken part in an election in accordance with laws passed by the HKSAR Legislature and have been duly elected. To do this is scarcely a rejection of the existing constitutional regime. They would not be in the situation they are in if they totally rejected this regime. Whatever views they espouse, to seek change of the constitutional regime through lawful means is not a rejection; it is a recognition of the existing system and the need for a change. One route for lawful change is through the mechanism of amendment of the Basic Law under Article 159 which requires among other things the consent of a two-thirds majority of all members of the Legislative Council. That it may be a hopeless dream does not mean that the dreamers will not uphold the Basic Law or are acting unlawfully. So far, no-one has been charged with the crime of advocating independence or self-determination. If the Legislative Council in due course passes a law making it a criminal offence to seek the impossible, so be it. Meanwhile, the self-righteous may condemn them for dreaming but this is no basis for excluding them from the Legislative Council.

Another undeniable fact is that the HKSAR is founded upon a mass of contradictions, too many to list. These contradictions raise profound questions as to the meaning of upholding the Basic Law of the HKSAR of the PRC and bearing allegiance to the HKSAR of the PRC. But if we cannot clearly say what we mean by upholding the Basic Law, then how can we point the finger at anyone and say he or she will not uphold the Basic Law? Similarly with bearing allegiance.

While the Preamble to the Basic Law states that Hong Kong (not the HKSAR ) has been part of the territory of China (not the PRC ) since ancient times, Article 1 of the Basic Law provides that the Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China. As we know, the HKSAR has a shelf-life of 50 years so if we wish to discuss a change after the expiry of the 50 years and to begin to discuss it now, a change which includes the possibility of alienation from the PRC, is there anything contrary to the Basic Law which also only has a shelf-life of 50 years? This against the background of the Constitution of the PRC which declares only that Taiwan is part of the sacred territory of the People’s Republic of China but makes no mention whatsoever of Hong Kong or Macau.

A special aspect of this SAR is that while the Central People’s Government is responsible for the defence of the HKSAR, which is why we have a PLA Garrison here, expenditure for it is to be borne by the CPG. The HKSAR is not expected to pay for the maintenance of territorial integrity and we all know that in the HKSAR, money is the benchmark of everything. When it comes to the matter of whether the people of Hong Kong, irrespective of race, religion or political opinion, would step up to defend Hong Kong if she were ever under attack, is it obvious that the advocates of independence and self-determination would not do their bit? What then is the meaning of bearing allegiance to the HKSAR?

The existence of the HKSAR of the PRC is a paradox. Article 31 of the Constitution provides for the establishment of special administrative regions and for the systems to be instituted in them to be prescribed by law enacted by the National People’s Congress. But Article 5 of the Constitution provides that the State upholds the uniformity and dignity of the socialist legal system and that no laws or administrative or local rules and regulations may contravene the Constitution. But our Basic Law refers in the Preamble and provides in Article 5 that the socialist system and policies shall not be practised in the HKSAR.

The PRC Constitution Preamble refers to the fact that the exploiting classes as such have been abolished in our country. But not in our Legislative Council functional constituencies and the Election Committee which exist under our Basic Law. These are heavily weighted in favour of those who control the means of production through corporate voting giving the say only to the directors not to the workers.

More importantly, if we were to poll the people of Hong Kong and ask whether “one country” as represented by Article 1 of the Basic Law were more important to them than “two systems” as represented by the first paragraph of Article 22 which prohibits interference by any department of the Central People’s Government in the affairs which the HKSAR administers on its own, and the majority were to say “Article 22”, does that mean that the majority are not upholding the Basic Law? And were the majority to demand some mechanism to institutionalise Article 22 and find out what exactly the Central Government’s Liaison Office in Western has been doing, would that be taken as some step towards independence or self-determination?

It is a great irony that the HKSAR is a supposedly capitalist enclave allowed to exist for 50 years while the rest of the PRC marches towards the Marxist utopia (not forgetting Lenin, Mao, Deng and the Three Represents, all part of the PRC pantheon ) under the leadership of the Communist Party. Should we be embarking on a McCarthyist witch-hunt to find out how many legislators, judges, principal officials and even the Chief Executive are communists when we have operated on a “don’t ask, won’t tell” basis for all of these years?

Constitutional principle of ‘constructive ambiguity’ a dream?

An endless stream of people telling us that some bottom line has been crossed does not constitute law, even if it includes the President of the PRC. The fact that the socialist legal system of interpretation by the NPC Standing Committee has been imposed on us, contrary to the basic policy whereby the HKSAR was to be vested with independent judicial power including that of final adjudication, leaving the second system of the HKSAR without any institutional protection will not affect our understanding that there is a difference between “Rule by Man” and “Rule of Law”.

Let those who say that upholding the Basic Law and bearing allegiance to the HKSAR means one thing and one thing only make their argument based on a document which has a Preamble, 160 Articles and 3 Annexes. Let us applaud them for their belief which overlooks the numerous cases in which arguments have been made about the meaning of one or more of those articles. Let them ignore the cases in which the Government or official view has been found to be wrong and where consequently, the Government has not upheld the Basic Law.

Those of us who do not have a clear answer to the question what it means to uphold the Basic Law and to bear allegiance to the HKSAR may retire to a darkened room with the shades drawn and continue to apply cold towels to our fevered brows only to re-emerge when the constitutional principle of constructive ambiguity is restored. Or perhaps, this is a dream as unattainable as the dream of independence and self-determination ever was.

Gladys Li, SC, is a member of HK2020. This is the second of a two-part series on the Oath and Declaration Ordinance. The first article was published on November 22, 2016.

Photo: VOHK pictures