23rd February 2021 – (Hong Kong) The Secretary for Constitutional and Mainland Affairs, Erick Tsang, held a press conference at 4pm this afternoon (23rd) to announce the amendments stipulating the requirements for district councillors to swear to support the Basic Law and allegiance to the Hong Kong Special Administrative Region and the arrangements for consequences of a breach of oath. Roy Tang Yun-kwong, Permanent Secretary for Constitutional and Mainland Affairs and Lawrence Peng, Deputy Law Draftman were also present at the conference.
Erick Tsang said that the Basic Law stipulates that the Chief Executive, Legislative Council members, judges at all levels and other personnel must swear an oath. He referred to the Hong Kong Legislative Council oath‑taking controversy in 2016 that led to the interpretation of the law by the National People’s Congress, clearly stating that the oath-taking is essential for those in public office and the Hong Kong National Security Law also clearly stipulates the requirements for oaths for those holding public office positions.
He mentioned that there are six key points of the amendment, including a clear explanation on the meaning of upholding of the Basic Law, amendments of the Legislative Council Ordinance and District Council Ordinance, and the addition of restrictions in various elections.
If they are disqualified from office due to invalid oath, violation of oath, or failure to meet the statutory requirements and conditions of “supporting the Basic Law and allegiance to the Hong Kong Special Administrative Region”, they will not be allowed to stand for election within 5 years.
The commissioner for oaths will be uniformly appointed by the Chief Executive, and flexible arrangements will be provided. The Chief Executive can authorise a suitable person to administer oaths. If there is a violation of the oath after the oath is taken, the relevant public official shall be liable in accordance with the law. Erick Tsang pointed out that the current Criminal Offences Ordinance can cover the act of making a false oath. As for the direct liability for breach of the oath, it is proposed to amend the Legislative Council Ordinance and the District Councils Ordinance to stipulate that breaching the oath or failing to meet the statutory requirements and conditions of “supporting the Basic Law and loyal to the SAR” means disqualification as members of the Legislative Council and district councils.
The relevant authorities will announce the Public Service (Participation and Appointment) (Miscellaneous Amendments) Bill 2021. It is understood that the Bill proposes to amend the Cap. 11 Oaths and Declarations Ordinance, the “Legislative Council Ordinance,” and the “District Councils Ordinance” to improve the arrangements for oaths and the handling mechanisms and legal consequences for violations of oaths. The bill proposes that except for public officials included in Article 104 of the Basic Law, all district councillors must swear an oath.
According to the document submitted by the government to the Legislative Council, it lists nine major violations including committing or carrying out acts or activities that endanger national security, refusing to recognise China’s ownership of the Hong Kong SAR, attempting to exercise sovereignty, refusing to recognise the constitutional status of the Hong Kong Special Administrative Region as a local administrative region of China, advocating or supporting “Hong Kong independence” claims, including claiming, promoting or implementing “self-determination sovereignty or governance” and other activities, or participating in an organisation with a purpose to achieve “self-determination.” If the relevant person is involved in the aforesaid acts after taking an oath, he may eventually be disqualified as a member, and lose the qualification to be nominated or elected in the relevant election within 5 years.
As for the norms for taking oaths, they include clearly defining the criteria of “supporting the Basic Law and loyal to the Hong Kong Special Administrative Region”; adding specific requirements for taking oaths in the law, such as making a sincere and solemn oath, which must be accurate. If a member violates the oath after taking the oath, the draft proposes that the Secretary of Justice initiates legal procedures, during which members shall suspend their duties until the court has a ruling.
Erick Tsang said that if anyone was deemed to have taken an insincere oath, the relevant disqualification procedure would naturally be initiated. For those who violate the oath, the relevant duties will be suspended for 5 years. It has been explained that the deduction is calculated by judging that the relevant person has violated the oath. As to whether the payment of remuneration should be stopped during the suspension of the office of the legislator, it will be left to the Legislative Council to decide. The Home Affairs Bureau will be responsible for deciding whether to continue to pay the relevant district councillors. When asked whether the person who participated in the 35+ primary election of the Pan-Democrats has violated the oath, he did not comment on the suspected violation of the oath in the past, because he is not responsible for judging the violation.
He also categorically denied that this amendment is aimed at the disqualification arrangement of the pan-democrats, and reiterated that the society expects prospective candidates to take oaths in good faith and emphasised that they need to comply with the relevant legal responsibilities.