Article 104 of the Hong Kong’s Basic Law states:
When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.
Today Beijing offered it’s unsought interpretation which make s three points:
1: Content of the oath
The passage in Article 104 “swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China,” is the “statutory content” of the Legco oath.
It is also the “statutory requirement and condition” for people to take public office stated in that article, including lawmakers.
2: Definition of “in accordance with law”
a) Taking the oath is a statutory condition and mandatory procedure for people to assume public office.
If one has not taken a valid oath accepted by law, or if one declines to swear in, he or she cannot assume office, and cannot exercise the duties and enjoy the privileges of public office.
b) The oath-taking must fulfil the statutory requirements in format and content. The person taking the oath should take it sincerely and solemnly and must accurately, completely and solemnly read out phrases such as “uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China” and “bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China” as stated in the statutory oath.
c) If the oath-taker refuses to take the oath, he or she shall be disqualified from assuming public office. One is deemed to have refused to take the oath – and subsequently have his or her oath invalidated – if he or she deliberately reads out an oath different from the statutory oath or does it in an insincere or frivolous manner.
d) The oath administrator has the duty to confirm the oath taking is carried out legally and that the oath complies with this interpretation and Hong Kong law.
Any oath that does not satisfy the above interpretation should be confirmed as an “invalid” oath. Retaking the oath is forbidden.
3: Consequences of breach
Those who make a “false oath” or engage themselves in acts that violate the oath after taking it will bear legal responsibility.
Since this interpretation adds things not explicitly written into the existing law, can it be applied retroactively to those who took the oath in the past? If Hong Kong’s judicial system, the most fundamental difference between Hong Kong and China, remains truly ‘independent’ then that will be for the lawyers to argue over and ultimately the Court of Final Appeal to decide.
Logic and common sense would say that you can’t be guilty of something that wasn’t a ‘crime’ when you did it. But the law, common sense and logic make strange bed-fellows. The law has lots of ways to circumvent law changes. eg driving at the legal speed of 40 only for the limit to be reduced the next day to 30. You can’t be charged with speeding because your speed was legal at the time, but you could be charged with careless driving…
So will the judiciary fall over to kiss Beijing’s derriere, for those of us who love Hong Kong we have to hope not. While the law is a living evolving thing, precedents and case law establish a framework for how that happens.
If the CCP is allowed to trample over the law, then tragically Hong Kong is a dead man walking. If the law has no meaning, why will multi-nationals and big companies remain here when a contract isn’t worth the paper it’s written on. They will just move to China where contracts are always open to reinterpretation, often by a sack of money under the table or a fist.
Read the Basic Law here