Legislators who break Basic Law pledge should resign

Patrick Ho says Legco members who violate their vow to uphold the Basic Law - such as by burning a copy of it in protest - should resign and oppose the system from the outside

PUBLISHED : Thursday, 20 September, 2012, 12:00am
UPDATED : Thursday, 20 September, 2012, 8:34pm

After a fierce and rip-roaring round of campaign battles, the Legislative Council election is now over, and the elected candidates are preparing for their inaugural session next month. The day will of course be mainly taken up with the swearing-in ceremony for the new members.

According to Article 104 of the Basic Law, key members of constitutional institutions are required to swear to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region before taking office.

This practice has more than ceremonial significance, and is based on legalistic common sense. It is adopted by most leading democracies in the world. For instance, a newly elected US president is required to utter the prescribed words: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and to the best of my ability, preserve, protect and defend the Constitution of the United States."

Why must the US president swear to protect the constitution? Because it is the nation's legal and moral foundation, and it sets forth the separation of power and the rights of citizens, among other things.

Its equivalent in Hong Kong is the Basic Law, which outlines the roles of the three branches of government - the executive, legislative and judicial. Therefore, if any members who have sworn to uphold the Basic Law do anything to undermine it, in reality they would be undermining their own legitimacy.

On more than one occasion in recent years, some Legco members have participated in the destruction of copies of the Basic Law, the most recent occurring in front of the central government's liaison office on July 1, when a serving Legco member took part in the incineration of a copy of the constitution.

Arguably the most dramatic such instance occurred in 2005 within the Legco chambers, when Leung Kwok-hung ripped apart sections of the Basic Law and received a warning from Legco president Rita Fan Hsu Lai-tai. Such action constitutes a clear violation of the legislators' pledge, at their swearing-in, to protect the Basic Law. Leung's fellow Legco members and allies Albert Chan Wai-yip and Wong Yuk-man also confessed to having burnt copies of the Basic Law.

Those who perpetrated such radical actions justified them as acts of "civil disobedience". But this contradicts their election to public office, since it was legitimised under the rules of the Basic Law.

The Basic Law provides the constitutional foundation for Hong Kong's governance and general stability. All the provisions are integral parts of a single constitution. One should not, and cannot, pick and choose to uphold only those parts of the Basic Law that converge with one's own interests.

If legislators criticise the process by which the Basic Law was formulated, and question its validity, it begs the question whether these people have perjured themselves in taking their oath.

Putting aside the legal aspects of such "civil disobedience", it is generally accepted that such drastic action is one of last resorts available to influence a government, and can only be taken by people outside the constitutional framework. In other words, a member of the establishment - whether from the executive, legislative or judicial branches - must resign first, since they are fundamentally opposed to the system to which they have been elected or appointed.

Indeed, it is possible to successfully oppose the government in power through peaceful civil disobedience, as Gandhi, Martin Luther King Jnr and, more recently, Aung San Suu Kyi have done, with admirable results. But it's hypocritical to remain a member of a system that one opposes on moral or political grounds, and benefit from it by way of wages.

The bottom line is that one cannot have one's cake and eat it, too. Doing so reveals a lack of moral backbone and exposes the opportunism behind the legislator's political antics. Once the moral high ground is lost, such "protest action" or "civil disobedience" becomes no more than political theatre.

Politics is the art of compromise. Modern representative governments craft their policies based on thorough studies of society's needs but they must compromise with the political opposition for such policies to become law.

Let's hope that when the new Legco term starts, all that belongs to the council will stay in the council, and all that belongs to the street will remain on the street. Every legislator has a responsibility to uphold the constitutional order prescribed by the Basic Law, or resign if they cannot serve Hong Kong within its framework so that they can challenge the system from the outside.

Patrick Ho Chi-ping is deputy chairman and secretary general of the China Energy Fund Committee and a former secretary for home affairs