Full text: Explanations on draft interpretation of Article 104 of Basic Law of Hong Kong SAR(2)

Since the promulgation of the Hong Kong Basic Law, the Central Authorities and the HKSAR have all along understood and implemented the requirements under Article 104 of the Hong Kong Basic Law in the aforementioned way. When the Preparatory Committee for the HKSAR established under the National People's Congress in 1996 (hereinafter referred to as "the Preparatory Committee") prescribed the method for the selection of the first Chief Executive of the HKSAR, the method for the formation of the Provisional Legislative Council, and the specific method for the formation of the first Legislative Council, it provided that the candidates standing for the Chief Executive election and the Legislative Council election must uphold the Hong Kong Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, and pledge allegiance to the Hong Kong Special Administrative Region of the People's Republic of China. The Preparatory Committee was an authority established upon a decision of the National People's Congress to be responsible for the preparatory task to establish the HKSAR, and its decisions and requirements have legal effect. In accordance with the Hong Kong Basic Law and the aforesaid decision of the Preparatory Committee, corresponding requirements were enacted in section 16 of the Chief Executive Election Ordinance and section 40 of the Legislative Council Ordinance, and have been followed in past Chief Executive elections and Legislative Council elections. In view of the fact that a situation has arisen in the course of the election for the sixth Legislative Council of the HKSAR whereby individuals openly advocating "Hong Kong Independence" stood for the election and were elected, it is necessary to make it clear that anyone who stands for election in respect of or takes up a public office specified in Article 104 of the Hong Kong Basic Law must uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, and to bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China. Accordingly, Article 1 of the Draft Interpretation stipulates: "To uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China" and to bear "allegiance to the Hong Kong Special Administrative Region of the People's Republic of China" as stipulated by Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, are not only the legal content which must be included in the oath prescribed by the Article, but also the legal requirements and preconditions for standing for election in respect of or taking up the public office specified in the Article.

It is necessary to point out in particular that advocating and promoting "Hong Kong Independence" in Hong Kong amounts to an act of secession which is clearly prohibited by Article 23 of the Hong Kong Basic Law, and is essentially a violation of Article 1 of the Hong Kong Basic Law regarding "The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China", and Article 12 of the Hong Kong Basic Law regarding "The Hong Kong Special Administrative Region 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 Central People's Government" etc. For those who advocate "Hong Kong Independence", not only are they not qualified to stand for election in respect of or to take up the office of members of the Legislative Council, but should be subjected to legal liability in accordance with law.

2. On the meaning of "when assuming office... must, in accordance with law, swear [the oath]" as stipulated in Article 104 of the Basic Law of the HKSAR.

Article 104 of the Hong Kong Basic Law stipulates that "when assuming office" the relevant public officers "must, in accordance with law, swear [the oath]". According to the law and its practice, this provision has at least four levels of meaning: Firstly, oath taking is the legal prerequisite and required procedure for public officers specified in the Article to assume the relevant public office. No public office shall be assumed, and hence no corresponding powers and functions shall be exercised, and no corresponding entitlements shall be enjoyed by anyone who fails to lawfully and validly take an oath or who declines to take the oath. Secondly, the oath is a solemn declaration, which must comply with the legal requirements in respect of its form and content, namely that the conduct and manner of the oath taker must be sincere and solemn, and the oath and its content must accord with the wording of the oath prescribed by law and must be taken accurately, completely and solemnly. Thirdly, an oath taker is disqualified forthwith from assuming the respective public office specified in Article 104 of the Basic Law if he or she declines to take the oath. If an oath taker intentionally contravenes or desecrates the oath taking procedure and ceremony by means of conduct, words, attire or paraphernalia, etc., or intentionally alters, distorts the wording of the oath prescribed by law or reads out words which do not accord with the wording of the oath prescribed by law, such oath taking conduct shall also be regarded as not in compliance with the requirements in respect of oath taking in form or in substance. The oath so taken is invalid and the oath taker is disqualified forthwith from assuming office. As regards the situation where the non-compliance is not caused intentionally on the part of the oath taker, the oath taker may be permitted to retake the oath. Fourthly, there must be arrangement for the administration of oath. The person administering the oath has the duty to ensure the oath is taken in a lawful manner, and correspondingly, he or she also has the power to determine the validity of the oath. No arrangement shall be made for retaking the oath by a person who intentionally contravenes the requirements in respect of oath taking. Therefore, Article 2 of the Draft Interpretation stipulates: "The provisions in article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China that 'when assuming office' the relevant public officers 'must, in accordance with law, swear [the oath]' bear the following meaning.(mo