Hong Kong Basic Law

Beijing officials’ remarks on ‘insincere oaths’ not laws but a ‘persuasive explanation’, Maria Tam says

Basic Law Committee member says views could be taken into consideration by local courts in lawsuit to disqualify eight pro-democracy lawmakers

PUBLISHED : Friday, 11 November, 2016, 11:05am
UPDATED : Wednesday, 30 November, 2016, 10:59am

The suggestions made by Beijing officials that certain acts, wordings or props used during the Legislative Council swearing-in ceremony could amount to an “insincere oath” are not laws but a “persuasive explanation” that could be taken into account by local courts, a Basic Law Committee member said on Friday.

Maria Tam Wai-chu’s remarks came after the High Court was asked by a citizen to declare the swearing-in of eight more pro-democracy lawmakers – who had either chanted slogans or brought along props during the ceremony – invalid and for their seats to be vacated.

On Monday, when Beijing handed down the interpretation of Basic Law Article 104 regarding the oath-taking saga, Legislative Affairs Commission vice-chairman Zhang Rongshun explained that an oath-taker could be disqualified if he or she deliberately “blasphemed” the ceremony through certain conduct, language, dress and use of props.

On Wednesday, Chen Zuoer, former deputy director of Beijing’s Hong Kong and Macau Affairs Office, and Wang Zhenmin, legal department head of Beijing’s liaison office, further catalogued eight types of “insincere oaths”, involving 15 lawmakers.

But none of the specifics from Zhang, Chen or Wang were included in the ruling handed down by the National People’s Congress Standing Committee, which on Monday stated only that lawmakers must be sincere and solemn in taking their oaths or face disqualification.

“[Zhang’s view] is just a guide but not law, and it is not legally binding,” Tam, a pro-Beijing heavyweight and barrister, told Commercial Radio on Friday morning.

But the “supplementary” details from Zhang were a persuasive explanation and very similar to the legislative intent of Article 104, Tam said, which could be considered by local courts in view of the latest legal challenge filed by veteran taxi driver Roger Cheng Yuk-kai against eight pro-democracy lawmakers.

Disqualify Legco pair regardless of Beijing’s ruling, Hong Kong government lawyers argue

Tam also reiterated that Beijing’s ruling would carry a retroactive effect as it was only interpreting an existing law instead introducing new laws – a point she said had already been affirmed by the Court of Final Appeal.

In the previous Legco term, then-Legco president Jasper Tsang Yok-sing had given lawmakers, such as “Long Hair” Leung Kwok-hung and Wong Yuk-man, a second chance when they messed up their first attempt.

But Tam said the fact that no one launched a legal challenge against Tsang’s ruling did not mean his judgment was correct.

She also claimed that the number of people who would be disqualified by the ruling was not at all the consideration of Beijing – which aimed only at keeping pro-independence forces out of the city’s establishment.

On the same programme, Albert Chen Hung-yee, another Basic Law Committee member and a legal academic at the University of Hong Kong, said it was reasonable for Beijing’s ruling to cover one’s right to stand for election as well.

He believed the ruling would help the local courts handle the judicial reviews filed by Edward Leung Tin-kei and Chan Ho-tin, who had both been disqualified by returning officers from running in the Legco polls for their pro-independence stance.

Separately, Financial Secretary John Tsang Chun-wah said he believed Beijing’s interpretation would not affect the city’s rule of law and investors’ confidence in Hong Kong.