Abstract
This Article provides an analysis that though there are many occasions that the courts in the HKSAR differ from the NPCSC in terms of the interpretation on the Hong Kong Basic Law, there are some occasions that common law and Chinese law agree, and the occasion to uphold the solemnity and legality of the oaths taken by public officers is one of those. The author compares the legal and political impact of an oath in the Eastern and Western world since ancient times. She further establishes her arguments that no matter by common law or Chinese law, the interpretation of Article 104 of the Hong Kong Basic Law would arrive at the same conclusion. Through detailed discussion on common law cases on the validity of an oath, the author observes that it is foreseeable that the legislators who breached the form as well as content of the Legislative Council of Hong Kong oath in 2016 would be disqualified if one paid attention to an earlier judgement in 2004 in relation to whether the format of swearing the oath may be deviated. The answer from the Court is “NO”. The interesting point is that 12 years later there is an NPCSC Interpretation on Article 104 of the Hong Kong Basic Law, the content of which very much resembles common law principles on the validity of an oath and its legal implication if the oath is not sworn solemnly by legislators in the prescribed form. Therefore, the author argues that regarding an oath, common law and Chinese law agree.

I. Introduction

Four legislators were disqualified for their breach of oath in failing to pledge allegiance to the Hong Kong Special Administrative Region (the “HKSAR”) of the People’s Republic of China and failing to uphold the Basic Law of the HKSAR (the “Hong Kong Basic Law”) on November 11, 2020. The Hong Kong Government announced their decision to disqualify the four legislators instantaneously with pursuance to an earlier decision concerning the qualification of the legislators of the HKSAR (the “NPCSC Decision 2020”) promulgated by the National People’s Congress Standing Committee (the “NPCSC”) on the same date. The NPCSC Decision 2020 was based on Article 52 and Article 54 of the Constitution of the People’s Republic of China (the “Constitution”) as well as the Law of the People’s Republic of China on Safeguarding National Security of the HKSAR (the “National Security Law”) and the NPCSC Interpretation on Article 104 of the Hong Kong Basic Law on November 7, 2016 (the “NPCSC Interpretation 2016”). The decision to disqualify the four legislators must be traced back to the conduct of the four legislators to call for other countries to sanction Hong Kong since May 2019. These acts are deemed to have breached the oath of Article 104 and constituted a failure to pledge loyalty to the HKSAR nor to uphold the Hong Kong Basic Law. Specifically, the NPCSC Decision 2020 made a clear reference to the decision of the Election Officer who decided not to allow the four legislators to run the Legislative Council election originally scheduled on September 6, 2020. Namely, they were found not to have complied with the requirement of a candidate for the Legislative Council election.

After the promulgation of the National Security Law on June 30, 2020, a candidate of the Legislative Council shall not have breached the National Security Law nor Article 104 of the Hong Kong Basic Law and the related NPCSC Interpretation 2016; otherwise, he is not qualified to be a public officer nor a candidate of a public post of the HKSAR including Legislative Council or District Council.

An oath is a very serious public promise for public officers, Legislative Councilors, judicial officers, as well as the Chief Executive and her team of civil servants as it is a promise of loyalty to one’s country. Leung Kwok Hung, a former legislator, started the challenge of the Legislative Council by judicial review to ask for permission from the court to deviate from the statutory oath as early as 2004. His application failed. He was, however, let go many times at the Legislative Council when he deviated a bit from the original version of the required oath either in form or in content by the serving Secretariat or the President of the Legislative Council. Not until 2016, when more and more newly elected members would like to ruin the dignity of China and her people in their oaths to assume duty as a Legislative Councilor of the HKSAR, they were not let go as their acts either in form or in content attempted to humiliate China at the Legislative Council of her Special Administrative Region. These conducts are not acceptable for a person to serve as a legislator of the HKSAR. The most serious humiliation came from Sixtus Leung Chun Hang and Yau Wai Ching who were refused the chance to retake the oath and were disqualified instantaneously. The other four members-elect Leung Kwok Hung, Lau Siu Lai, Yiu Chung Yim and Nathan Law Kwun Chung who either got the chance to finish their oath or retake the oath, were also disqualified through another judicial review proceeding.

This Article will examine the prestigious status of an oath reflected by the above significant cases as well as in the Eastern and Western world. And, there is a constitutional moment where Chinese law and common law might agree.