Did localist lawmakers in oaths row make false statements of loyalty in election pledges?
Grenville Cross says the city’s justice chief must examine whether the duo’s actions in the chamber indicate they made false declarations in their nomination forms, which is a punishable offence
To stand in Legislative Council elections, candidates are required, under the Legislative Council Ordinance (section 40), to provide the returning officer with a “nomination form”, in which they declare that they will “uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.
Moreover, having made that declaration, a candidate is then supposed, under the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, to sign a “confirmation form”, which, having reminded the candidate of the original declaration, spells out exactly what is meant by upholding the Basic Law, by reference to specific articles thereof.
This, presumably, is for the purposes of ensuring that, before the candidate signs, he or she fully appreciates what is being signed up to.
The confirmation form reminds the candidate that Article 1 of the Basic Law stipulates that Hong Kong “is an inalienable part of the People’s Republic of China”.
It then, for good measure, alerts the candidate to Article 12, which states that Hong Kong “shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy and come directly under the People’s Republic of China”.
At the end, the confirmation form notifies the candidate that, if he or she knowingly makes a statement which is false in a material particular, an offence will have been committed, and the candidate, armed with this knowledge, may, if he or she accept the conditions, then sign it.
The offence in question lies in the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (section 103). This makes it an offence for a person, in an election-related document, to make a statement which he or she “knows to be false in a material particular or recklessly makes a statement which is incorrect in a material particular or knowingly omits a material particular from an election related document”.
Upon conviction, an offender is liable to a maximum sentence of six months’ imprisonment and a fine of HK$5,000.
Every candidate, therefore, who was successfully elected in the Legco election on September 4, would have made a declaration in the nomination form to uphold the Basic Law, together with a pledge of loyalty to the Hong Kong SAR. They should also have signed the confirmation form, although it has been reported that not all did, and only signed the nomination form, but nonetheless still stood for election.
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Of course, some prospective candidates were blocked, by returning officers who doubted their bona fides, from standing for election, and this itself is now the subject of judicial review.
However, every candidate subsequently elected must, by their declarations, either in the nomination form, or in the confirmation form, or both, have satisfied the officers that they were genuine, in terms of the qualifying criteria.
However, fast-forward to October 13, and two of those candidates, by now legislators-elect, when called upon in Legco to take their oaths of office, indulged instead in various bizarre antics, designed to make a mockery of a solemn occasion.
Obscenities apart, they pledged allegiance to “the Hong Kong nation”, displayed banners proclaiming “Hong Kong is not China”, and deliberately mispronounced the word “China”. Although the Legislative Council president has vacillated over whether to grant the duo a second chance to swear their oaths, wider considerations are now at play.
If the returning officers who processed the nomination forms of the two candidates had had any inkling of what was in store if they were elected, would they still have permitted them to stand? If not, has the wool been pulled over their eyes? If so, have false declarations been made?
Although the government has obtained leave to seek a judicial review, apparently on the basis that, under the Oaths and Declarations Ordinance (section 21), a lawmaker who declines or neglects to take an oath duly requested forfeits his or her place, with no question of a second chance, other issues are outstanding. The secretary for justice, Rimsky Yuen Kwok-keung, as chief prosecutor, must also consider any possible criminality by the two individuals.
In light of their conduct at the attempted swearing-in, how genuine were their original declarations in their nomination forms to the returning officers? What inferences about their real thinking at that time may reasonably be drawn from their subsequent behaviour? Were they simply paying lip-service to the formalities in order to get their names on the ballot paper?
These are necessary questions, and, at the very least, an investigation is required, to determine what declarations were made and in which forms.
Of course, it is possible, if unlikely, that, in the few short weeks between making their declarations and being required to swear their oaths, the two individuals underwent a Damascene conversion, morphing from Basic Law upholders into rabid independence fanatics, and Yuen will need to factor this in.
If, however, he concludes that the evidence, when looked at through a common-sense prism, reveals an offence of making a false declaration to the returning officer, he must then decide if a prosecution is in the public interest.
Grenville Cross SC is a criminal justice analyst