An Oath: Constitutional Dialogue Between Chinese Law And Common Law

AuthorPriscilla M.F. Leung
Pages60-82
60 TSINGHUA CHINA LAW REVIEW [Vol. 13:59
AN OATH: CONSTITUTIONAL DIALOGUE BETWEEN
CHINESE LAW AND COMMON LAW
Priscilla M.F. Leung
Abstract
This Article provides an analysis that though there are many
occasions that the courts in the HKSAR differ from the NPCSC in
terms of the interpretation on the Hong Kong Basic Law, there are
some occasions that common law and Chinese law agree, and the
occasion to uphold the solemnity and legality of the oaths taken by
public officers is one of those. The author compares the legal and
political impact of an oath in the Eastern and Western world since
ancient times. She further establishes her arguments that no matter
by common law or Chinese law, the interpretation of Article 104 of
the Hong Kong Basic Law would arrive at the same conclusion.
Through detailed discussion on common law cases on the validity of
an oath, the author observes that it is foreseeable that the legislators
who breached the form as well as content of the Legislative Council
of Hong Kong oath in 2016 would be disqualified if one paid attention
to an earlier judgement in 2004 in relation to whether the format of
swearing the oath may be deviated. The answer from the Court is
“NO”. The interesting point is that 12 years later there is an NPCSC
Interpretation on Article 104 of the Hong Kong Basic Law, the
content of which very much resembles common law principles on the
validity of an oath and its legal implication if the oath is not sworn
solemnly by legislators in the prescribed form. Therefore, the author
argues that regarding an oath, common law and Chinese law agree.
I. BACKGROUND
Four legislators were disqualified for their breach of oath in failing to
pledge allegiance to the Hong Kong Special Administrative Region (the
“HKSAR”) of the People’s Republic of China and failing to uphold the Basic
Law of the HKSAR (the “Hong Kong Basic Law”) on November 11, 2020.1
The Hong Kong Government announced their decision to disqualify the four
legislators instantaneously with pursuance to an earlier decision concerning the
qualification of the legislators of the HKSAR2 (the “NPCSC Decision 2020”)
1 Alvin Yeung, Dennis Kowk, K.K. Kwok and Kenneth Leung were disqualified as legislators by virtue
of the promulgation of the HKSAR Government on November 11, 2020.
2 Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xianggang Tebie Xingzhengqu Lifa
Weiyuanhui Yiyuan Zige Wenti de Jueding (全国人民代表大会常务委员会关于香港特别行政区立法会
议员资格问题的决) [Decision of the Standing Committee of the National People’s Congress on Issues
2020] CONSTITUTIONAL DIALOGUE OF OATH 61
promulgated by the National People’s Congress Standing Committee (the
“NPCSC”) on the same date. The NPCSC Decision 2020 was based on Article
52 and Article 54 of the Constitution of the People’s Republic of China (the
“Constitution”) as well as the Law of the People’s Republic of China on
Safeguarding National Security of the HKSAR (the “National Security Law”)
and the NPCSC Interpretation on Article 104 of the Hong Kong Basic Law on
November 7, 20163 (the “NPCSC Interpretation 2016”). The decision to
disqualify the four legislators must be traced back to the conduct of the four
legislators to call for other countries to sanction Hong Kong since May 2019.
These acts are deemed to have breached the oath of Article 104 and constituted
a failure to pledge loyalty to the HKSAR nor to uphold the Hong Kong Basic
Law. Specifically, the NPCSC Decision 2020 made a clear reference to the
decision of the Election Officer who decided not to allow the four legislators to
run the Legislative Council election originally scheduled on September 6,
2020.4 Namely, they were found not to have complied with the requirement of
a candidate for the Legislative Council election.
After the promulgation of the National Security Law on June 30, 2020, a
candidate of the Legislative Council shall not have breached the National
Security Law nor Article 104 of the Hong Kong Basic Law and the related
NPCSC Interpretation 2016;5 otherwise, he is not qualified to be a public
officer nor a candidate of a public post of the HKSAR including Legislative
Council or District Council.
An oath is a very serious public promise for public officers, Legislative
Councilors, judicial officers, as well as the Chief Executive and her team of
civil servants as it is a promise of loyalty to one’s country. Leung Kwok Hung,
a former legislator, started the challenge of the Legislative Council by judicial
review to ask for permission from the court to deviate from the statutory oath
as early as 2004.6 His application failed. He was, however, let go many times
at the Legislative Council when he deviated a bit from the original version of
the required oath either in form or in content by the serving Secretariat or the
President of the Legislative Council. Not until 2016, when more and more
Concerning the Qualifications of Members of the Legislative Council of the Hong Kong Special
Administrative Region] (promulgated by the Standing Comm. Nat’l People’s Cong., Nov. 11, 2020, effective
Nov. 11, 2020) (Chinalawinfo).
3 Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Zhonghua Renmin Gongheguo
Xianggang Tebie Xingzhengqu Jibenfa Di Yibailingsi Tiao de Jieshi (全国人民代表大会常务委员会关于
《中华人民共和国香港特别行政区基本法》第一百零四条的解释) [Interpretation of Article 104 of the
Basic Law of the Hong Kong Speical Administrative Region of the People’s Republic of China by the Standing
Committee of the National People’s Congress] (promulgated by the Standing Comm. Nat’l People’s Cong.,
Nov. 7, 2016, effective Nov. 7, 2016) (Chinalawinfo) [hereinafter NPCSC Interpretation 2016].
4 The election of the Legislative Council was postponed for one year because of the third wave of
explosion of covid-19 in Hong Kong in July 2020.
5 Xianggang Tebie Xingzhengqu Weihu Guojia Anquan Fa (香港特别行政区维护国家安全法) [Law
on Safeguarding National Security in the Hong Kong Special Administrative Region] (promulgated by the
Standing Comm. Nat’l People’s Cong., June 30, 2020, effective June 30, 2020), art. 35 (Chinalawinfo).
6 Leung Kwok-Hung v. Legis. Council Secretariat, [2004] H.K.C.F.I. 883.

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