NPC interpretation adds nothing new to Hong Kong law, and is wholly unnecessary

Ronny Tong expects no material change to our legal system as a result, but believes the move compromises the integrity of our judicial process – and that’s the real problem

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Ronny Tong

Published: 5:22pm, 8 Nov 2016Updated: 8:07pm, 8 Nov 2016

What are we mere mortals to make of it all? Illustration: Craig Stephens

So, yet another interpretation of the Basic Law by the NPC Standing Committee is upon us. This is the fifth interpretation in almost 20 years. One legal academic described this interpretation – on oath-taking for public officials – as a “nuclear bomb” and said our entire legal system and the “one country, two systems” principle had been “bombed away”. Other pan-democrats used similar language to describe this interpretation, while the pro-government parties rallied behind the National People’s Congress Standing Committee and strongly supported the interpretation. So what are we mere mortals to make of all this?

Hong Kong will pay a heavy price for yet another Basic Law interpretation

Journalists read through copies of the interpretation before a press conference at the Great Hall of the People in Beijing. It is the fifth interpretation of Hong Kong’s Basic Law by the NPC Standing Committee since the handover. Photo: AP

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

Let us, first of all, look at the actual text of the interpretation. Essentially, it made five main points.

Firstly, “oath-taking is the legal prerequisite and required procedure” for public officials in taking office, and when standing for election. Public officials are legally required to take the oath – that is, in essence, what Article 104 of the Basic Law and sections 19 and 21 of the Oaths and Declarations Ordinance already say; there is nothing unusual about that. As for those standing for elections, they must pledge to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region as a prerequisite; this is already spelt out under section 40(1)(b) of the Legislative Council Ordinance and section 10 of the Electoral Affairs Commission (Electoral Procedure)(Legislative Council) Regulation.

Is anyone seriously suggesting insincere oaths are acceptable?

Secondly, the interpretation said the candidate must comply with the legal requirement “in respect of its form and content” and “sincerely and solemnly, and “accurately, completely ... read out the oath prescribed by law”. That, in fact, is almost exactly what Mr Justice Michael Hartmann said in a 2004 ruling concerning the taking of oaths for legislators. The learned judge did not invent these terms. They were spelt out in section 16 of the Oaths and Declarations Ordinance.

The statute did not expressly say the oath must be taken sincerely and solemnly but is there any other way? Is anyone seriously suggesting insincere oaths are acceptable? Indeed, if you look up the word “oath” in the Webster dictionary, it will tell you that an oath means “a solemn, usually formal, calling upon God or a god to witness to the truth of what one says or to witness that one sincerely intends to do what one says”. Need one say more?

Thirdly, the interpretation says if the oath were not taken sincerely or solemnly, then the person in question must be taken as having declined to take the oath and he or she was to be disqualified from taking office forthwith. Well, that is what section 21 of the Oaths and Declarations Ordinance says, too.