Full text: Explanations on draft interpretation of Article 104 of Basic Law of Hong Kong SAR(3)

(1)Oath taking is the legal prerequisite and required procedure for public officers specified in the Article to assume office. No public office shall be assumed, no corresponding powers and functions shall be exercised, and no corresponding entitlements shall be enjoyed by anyone who fails to lawfully and validly take the oath or who declines to take the oath.

(2)Oath taking must comply with the legal requirements in respect of its form and content. An oath taker must make the oath sincerely and solemnly, and must accurately, completely, and solemnly read out the oath prescribed by law, the content of which includes "will uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China" .

(3)An oath taker is disqualified forthwith from assuming the public office specified in the Article if he or she declines to take the oath. An oath taker who intentionally reads out words which do not accord with the wording of the oath prescribed by law, or takes the oath in a manner which is not sincere or not solemn, shall be treated as declining to take the oath. The oath so taken is invalid and the oath taker is disqualified forthwith from assuming the public office specified in the Article.

(4)The oath must be taken before the person authorized by law to administer the oath. The person administering the oath has the duty to ensure that the oath is taken in a lawful manner. He or she shall determine that an oath taken in compliance with this Interpretation and the requirements under the laws of the Hong Kong Special Administrative Region is valid, and that an oath which is not taken in compliance with this Interpretation and the requirements under the laws of the Hong Kong Special Administrative Region is invalid. If the oath taken is determined as invalid, no arrangement shall be made for retaking the oath.

It is necessary to point out in particular that the content of the above interpretation is inevitably the meaning of taking the oath in accordance with law, and has always been the basic requirements in respect of oath taking in Hong Kong. Since Hong Kong reunification, the Chief Executive, principal officials, members of the Executive Council, the vast majority of members of the Legislative Council, judges of the courts at all levels and other members of the judiciary have taken the oath in accordance with law when assuming office as required by the Hong Kong Basic Law. However, certain members of the Legislative Council have deviated from the basic requirements in respect of oath taking, with increasing intensity. In particular, when members of the sixth Legislative Council took the oath, certain members-elect, in the course of taking the oath, spoiled the solemn oath taking ceremony, chanted slogans which were unrelated to the oath, failed to take the oath in the form and wording prescribed by law, and even insulted the country and the nation. The conduct of these individuals is in form and in substance contrary to the requirement to take the oath in accordance with law, and is a serious challenge against the bottom line of the principle of "one country, two systems" and the provisions of the Hong Kong Basic Law. Therefore, further making clear the provisions in respect of "when assuming office... must, in accordance with law, swear [the oath]" in Article 104 of the Hong Kong Basic Law is required in order to uphold the Hong Kong Basic Law and the integrity of the law, and is also necessary to restore the order of oath taking by members of the Legislative Council.

3. The legal effect and responsibility of oath taking in accordance with law prescribed by Article 104 of the Hong Kong Basic Law

The taking of the oath is a solemn pledge made by an oath taker to his or her country and society in the form of an open declaration. It is legally binding, and a person who breaches the oath must bear corresponding legal responsibility. In relation to the requirement of Article 104 of the Hong Kong Basic Law, taking an oath in accordance with law to uphold the Hong Kong Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, and to bear allegiance to the HKSAR of the People's Republic of China, is a legal pledge made by public officers specified in that Article to the People' s Republic of China, and its HKSAR. The taking of the oath is an act required by law which has legal effect. An oath taker must truly agree with, and sincerely believe in the requirements of the oath, he or she must also be determined to abide by the oath; and at the same time openly declare that if there is a breach of oath, he or she is willing to bear the corresponding legal responsibility. This is inherent in Article 104 of the Hong Kong Basic Law. On this basis, Article 3 of the Draft Interpretation stipulates, "The taking of the oath stipulated by Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is a legal pledge made by the public officers specified in the Article to the People's Republic of China and its Hong Kong Special Administrative Region, and is legally binding. The oath taker must sincerely believe in and strictly abide by the relevant oath prescribed by law. An oath taker who makes a false oath, or, who, after taking the oath, engages in conduct in breach of the oath, shall bear legal responsibility in accordance with law."

You are invited to examine whether the Draft Interpretation and its Explanations are in order. Endi