Hong Kong Basic Law

Subject to interpretation: charting the history of Hong Kong’s Basic Law

As Beijing gets set to interpret Article 104 over the oath-taking controversy, we look back at how the Basic Law came into being, and the challenges which have arisen

PUBLISHED : Saturday, 05 November, 2016, 2:59pm
UPDATED : Saturday, 05 November, 2016, 11:26pm

All eyes are on the mainland’s top legislative body’s imminent interpretation of Article 104 of Hong Kong’s mini-constitution on Monday to settle the issues concerning oath-taking by two pro-independence lawmakers.

The Basic Law has been in place for fewer than two decades, yet the Oaths and Declarations Ordinance, the local legal instrument to implement the Basic Law provision which requires lawmakers to swear to uphold the Basic Law and swear allegiance to Hong Kong as part of the People’s Republic of China, has a much longer history.

The ordinance, passed in 1972, can be traced to the Promissory Oaths Ordinance enacted in 1869. The Oaths and Declaration Ordinance, which is one of the subjects of the judicial review sought by the Hong Kong government in a bid to bar the two Youngspiration legislators from taking their seats, spells out the arrangements for oath-taking by top officials and lawmakers, as well as the consequences of failing to comply with the law.

The ordinance states that any person “who declines or neglects to take an oath duly requested” shall vacate or be disqualified from office. It also stipulated that if a lawmaker takes his or her oath at the first sitting of a Legco session, it shall be administered by the Clerk to the Legco, who is the secretary general of the legislature. The Legco president shall administer the oath-taking if it is taken at a subsequent meeting.

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The ordinance and Article 104 of the Basic Law do not state explicitly the standard for pledging allegiance to the mini-constitution and the special administrative region. It is understood that it will be one of the key issues addressed by the imminent interpretation by the National People’s Congress Standing Committee.

Mainland officials’ wrath arising from the oath-taking controversy is not confined to two localists lawmakers’ use of derogatory language in the swearing-in ceremony. They are also unhappy with the process by which the Legco oath has been administered, according to a source familiar with Beijing’s line of thinking.

“During the colonial era, it was the governor who administered the oath by legislators. In 1997, then chief executive Tung Chee-hwa swore in members of the Provisional Legislative Council,” he said. “But now it is Legco secretary general who administers the oath-taking.”

Some mainland officials may see the administration of oaths by the Legco president or secretary general as another sign of the growing assertiveness of the legislature, which undermines the “executive-led government”.

Until the early 1990s, legislators had to take the oath administered by the governor who was also president of the Legco. In 1993, then Governor Chris Patten relinquished his role as Legco president and the post was taken up by veteran lawmaker John Swaine, who was elected among legislators.

The ordinance was amended subsequently to state that lawmakers have to swear the Legco oath administered by the clerk to the Legco or president. Selina Chow Liang Shuk-yee, who served as legislator from 1981 to 2008, said: “Legco president or clerk to the legislature administering the oath is a manifestation of separation between the administration and legislature since then.”

Philip Dykes SC, who represents Youngspiration lawmaker Yau Wai-ching in the judicial review, argued during the hearing on Thursday that the changes to the Oaths and Declarations Ordinance before 1997 were designed to anticipate a time when “there would be a complete change in the system as outlined in the Basic Law and showed the new demarcations between legislative, executive and judicial functions”.

Former Legco secretary general Pauline Ng Man-wah said it was a special arrangement for Tung to administer the oath taken by provisional Legislative Council at the ceremony to establish the special administrative region on July 1, 1997. Ng joined the Legco secretariat in 1990 and retired as its head in 2012.

Beijing set up the provisional legislature after the derailing of the “through-train” arrangement under which members of the last colonial legislature were to have become members of the first legislature of the special administrative region.

During their oath-taking on October 12, the Youngspiration duo pledged allegiance to “the Hong Kong nation” and pronounced China as ­“Chee-na”, a variation of the ­derogatory “Shina” used by Japan during the second world war. To add insult to injury, they displayed a banner with the words “Hong Kong is not China”.

Legco secretary general Kenneth Chen Wei-on, who oversaw the swear-in ceremony before Andrew Leung Kwan-yuen was elected president, said he could not administer their oath because it was inconsistent with the ordinance.

Chow said it would not make a difference who administer the oath. “Whoever oversees the swear-in cermony, he or she can’t stop legislators who intentionally deviate from the official version of the oath.”

“There is not much ground for mainland officials to complain. It is inconceivable that after the handover, the chief executive administers the oath by lawmakers,” she said.