|LCQ5: Issues relating to the interpretation of Article 104 of the Basic Law by the Standing Committee of the National People's Congress
Following is a question by the Hon Michael Tien and a reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (December 7):
At its Twenty-fourth Session held on the 7th of last month, the Standing Committee of the Twelfth National People's Congress made an interpretation of Article 104 of the Basic Law (the NPCSC Interpretation). In this connection, will the Government inform this Council:
(1) given that Article 104 stipulates that the public officers specified therein, including Members of the Legislative Council (LegCo), must observe the following requirements when assuming office: swear to uphold the Basic Law (BL) and swear allegiance to the Hong Kong Special Administrative Region (HKSAR) in accordance with law, and that the NPCSC Interpretation states that such requirements are the "legal requirements and preconditions" for standing for election to or taking up the public offices specified in the Article, whether the Government has examined, in the event that a candidate, who has advocated for Hong Kong's independence during a LegCo election and thereby has contravened such requirements, is elected, how the Chief Executive can carry out his function under Article 48(2) of BL, i.e. to be responsible for the implementation of BL (including Article 104 pursuant to the NPCSC Interpretation);
(2) given that the NPCSC Interpretation states that a public officer, in taking an oath upon the assumption of office, must take it "before the person authorised by law to administer the oath", and section 19(a) of the Oaths and Declarations Ordinance provides that such an oath, "if taken at the first sitting of the session of LegCo immediately after a general election of all members of the Council and before the election of the President of the Council, shall be administered by the Clerk to the Council", whether the Government has examined if this provision shall be construed as follows: the oaths taken by LegCo Members at the first LegCo meeting held after a general election must be administered by the Clerk to the Council; whether the Government has explored if there are other legal provisions concerning who that person administering the taking of oaths by LegCo Members should be; and
(3) as the NPCSC Interpretation states that "the person administering the oath has the duty to ensure that the oath is taken in a lawful manner", and the person administering the oath shall determine that an oath which is not taken in compliance with the NPCSC Interpretation and the requirements under the laws of HKSAR is invalid, whether the Government has examined if the existing laws have conferred the relevant powers and functions upon the Clerk to the Council to enable him to act in accordance with the NPCSC Interpretation; whether the Government will examine the enactment of legislation to the effect that the oath-taking arrangements for LegCo Members be amended as follows: upon the election of the President from among LegCo Members, the Member who has the highest precedence but has not been elected as the President shall administer the taking of oath by the President, to be followed by the President administering the taking of oaths by all other Members; if it will examine, of the procedures and timetable for amending the relevant arrangements?
Article 104 of the Basic Law provides that "[w]hen assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council (LegCo), judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region (HKSAR) must, in accordance with law, swear to uphold the Basic Law of the HKSAR of the People's Republic of China (PRC) and swear allegiance to the HKSAR of the PRC." On November 7 this year, the Standing Committee of the National People’s Congress adopted the interpretation of Article 104 of the Basic Law (the Interpretation).
Having consulted the Department of Justice (DoJ), our reply to Member's question is as follows:
(1) The Legislative Council Ordinance (Cap 542) already stipulates the legal regulations and procedures for standing as candidates for the LegCo election. Whether the words and deeds of LegCo election candidates during the election period will affect their eligibility as candidates or their assumption of relevant public office is a matter that must be handled strictly in accordance with law. As for the specific circumstances of individual cases and what relevant laws are involved, the Returning Officers will follow the legal procedures and may, after seeking the advice of DoJ, consider whether any and what form of follow-up action will be taken. As each case has its own different actual circumstances, it is impossible for us to generalise, let alone comment on hypothetical circumstances in this question-and-answer session.
(2) and (3) Section 19 of the Oaths and Declarations Ordinance (Cap 11) (the Ordinance) sets out the specific arrangements relating to the taking of oaths by LegCo Members. Section 19(a) of the Ordinance stipulates that if the LegCo Oath is taken at the first sitting of the session of the LegCo immediately after a general election of all Members of the Council and before the election of the President of the Council, it shall be administered by the Clerk to the Council. As such, the taking of oaths by LegCo Members at the first sitting after a general election and before the election of the President of the Council shall be administered by the Clerk to the Council in accordance with law.
According to Article 104 of the Basic Law, Members of the LegCo in the HKSAR, when assuming office, must swear to uphold the Basic Law of the HKSAR of the PRC and swear allegiance to the HKSAR of the PRC. Article 71 of the Basic Law also provides that the President of the LegCo of the HKSAR shall be elected by and from among the Members of the LegCo. The election of President by LegCo Members from among themselves is an exercise of their constitutional power conferred by the Basic Law. If a Member of the LegCo fails to lawfully and validly take his or her oath under Article 104 of the Basic Law, no corresponding public office shall be assumed and no corresponding powers and functions shall be exercised. Rules 12(1) and (2) of the Rules of Procedure (RoP) of the LegCo stipulate that at the first meeting of a term, Members shall make or subscribe an oath or affirmation as provided for under Rule 1 of the RoP. After all Members present have made or subscribed an oath or affirmation, the election of the President shall be conducted in accordance with the procedure as provided for under Rule 4 of the RoP.
As mentioned above, according to section 19(a) of the Ordinance, if a Member of the LegCo takes the oath at the first sitting of the session of the LegCo immediately after a general election of all Members of the Council and before the election of the President of the Council, the oath shall be administered by the Clerk to the Council. The Interpretation aims to reiterate and explain clearly the meaning of Article 104 of the Basic Law. No change has been made to the content or the legislative intent of the Article. The provision in the Interpretation concerning the person administering the oath does not increase or diminish his or her powers, but rather gives a clearer elucidation of his or her duties.
The Government is examining the follow-up work in connection with the Interpretation. If there is a need to change the requirements and arrangements under the existing law for oath taking by the LegCo Members, comprehensive and holistic consideration should first be given to aspects including whether it is necessary to amend the law, and whether the work for implementing the relevant arrangements will be made more clearly and effectively by legislative amendments, etc.
Ends/Wednesday, December 7, 2016
Issued at HKT 14:31