Date
11 December 2016
A ruling related to an oath-taking controversy surrounding two lawmakers-elect, Sixtus Leung and Yau Wai-ching, has raised troubling questions. Photo: HKEJ
A ruling related to an oath-taking controversy surrounding two lawmakers-elect, Sixtus Leung and Yau Wai-ching, has raised troubling questions. Photo: HKEJ

Clarification on ‘double allegiance’ a must

Last week, the High Court ruled in favor of the government and declared the lawmaker status of two Youngspiration activists null and void. The decision came as it was deemed that the manner in which the legislators-elect took their oaths, as well as the wording they used, constituted a violation of Article 104 of the Basic Law and the Oaths And Declarations Ordinance.

Justice Thomas Au said that even though he didn’t cite a single word from the National People’s Congress Standing Committee’s (NPCSC) Basic Law interpretation in his ruling, the interpretation is binding on all local courts in our city.

He also said the interpretation applies to all pending court trials over the judicial review applications filed by members of the public against other lawmakers who could also have violated the Basic Law and the Oaths and Declarations Ordinance under the NPCSC ruling.

Justice Au’s ruling is bound to have far-reaching implications for our courts, and is likely to cause confusion among all incoming public office holders in Hong Kong as to whether it should be the People’s Republic of China or the HKSAR to which they should pledge allegiance and loyalty when they are sworn in.

Amid the worries, I am going to focus on the allegiance issue which is raised by the NPCSC interpretation, and which concerns tens of thousands of civil servants and public office holders in Hong Kong.

According to Martin Lee, founding chairman of the Democratic Party and a member of the Basic Law drafting committee in the 80s, the NPCSC interpretation has basically elaborated on Article 104 of the Basic Law by attaching new provisions to it, which amounts to amending the Law, and calls into question whether the NPCSC has overstepped its constitutional power.

Li Fei, deputy secretary general of the NPCSC, said during a press conference in Beijing that according to the new interpretation, public office holders in Hong Kong must pledge loyalty and allegiance to the People’s Republic of China “and its” Hong Kong Special Administrative Region.

However, according to the original clause of Article 104, all it says is that civil servants and public office holders in Hong Kong must take an oath to pledge allegiance to the Basic Law and the HKSAR. It doesn’t require them to pledge loyalty to the People’s Republic of China as well.

As Martin Lee put it, what the NPCSC interpretation did is simply extend the subject to which civil servants or other public office holders must pledge allegiance so as to cover the People’s Republic of China as well. That calls into question the constitutionality of the interpretation.

As a result of the extended jurisdiction of Article 104 under the NPCSC interpretation, Lee noted, government officials and lawmakers may need to abide by not only the Basic Law, but also laws in the mainland or even the Chinese constitution as well.

As such, the extended Article 104 will have profound and far-reaching implications for our society, which cries out for further clarification and explanation.

Unfortunately, so far neither the NPCSC nor members of the Basic Law Commission have addressed Lee’s concern and clarified the issue.

In fact apart from the Chief Executive, who is required to take an oath to pledge allegiance to both the HKSAR and the central government in Beijing, all other officials or public office holders in Hong Kong are required to pledge loyalty only to the Basic Law and the HKSAR, rather than the “People’s Republic and its special administrative region”, under the One Country Two Systems principle.

There had been no such issue as “double allegiance” before the recent NPCSC interpretation.

As such, the interpretation not only raises doubts about its constitutionality, it is also likely to cause a great deal of confusion among office holders in Hong Kong.

As the NPCSC move has added extra provisions to the original Article 104 of the Basic Law, I hope our courts can explain how they are going to execute the extended jurisdiction of the law, and above all, clarify the issue of “double allegiance” to allay concerns among our civil servants and public office holders.

This article appeared in the Hong Kong Economic Journal on Nov. 23.

Translation by Alan Lee

[Chinese version 中文版]

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AL/DY/RC

Former Secretary for the Civil Service of the Hong Kong Government

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