The Standing Committee of the twelfth National People's Congress on Monday adopted the interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China at its twenty-fourth Session.
Following is the full text of the explanations on the draft interpretation.
EXPLANATIONS ON THE DRAFT INTERPRETATION BY THE STANDING COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS OF ARTICLE 104 OF THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE'S REPUBLIC OF CHINA
On 5 November 2016 at the Twenty-fourth Session of the Standing Committee of the Twelfth National People's Congress
Zhang Rongshun, Vice-Chairman, Legislative Affairs Commission of the Standing Committee of the National People's Congress
Chairman, Vice-Chairmen, Secretary-General, Members:
On the instruction of the Council of Chairmen, I now provide explanations on the Draft Interpretation by the Standing Committee of the National People' s Congress of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People' s Republic of China (hereinafter referred to as "the Draft Interpretation").
In recent years, some people of the Hong Kong society openly advocate the notion of "Hong Kong Independence" or notions of the same nature, such as "the independence of Hong Kong", "Hong Kong national self-determination," etc. which have caused grave concern, anxiety and anger among people of the whole country, including the vast majority of Hong Kong residents. The inherent nature of "Hong Kong Independence" is secession. Words and conduct advocating "Hong Kong Independence" seriously contravene the policy of "one country, two systems", seriously contravene the Constitution of the country, the Basic Law of the Hong Kong Special Administrative Region of the People' s Republic of China (hereinafter referred to as "the Hong Kong Basic Law") and the relevant legal provisions of the Hong Kong Special Administrative Region (hereinafter referred to as "the HKSAR"), seriously undermine national unity, territorial integrity and national security, and also have a serious impact on the long-term prosperity and stability of Hong Kong.
In the course of the election for the sixth Legislative Council, some people advocating "Hong Kong Independence" submitted nominations as candidates. The Returning Officers of the HKSAR decided the nominations of six of those people openly advocating "Hong Kong Independence" as invalid in accordance with law. On 12 October, at the oath taking ceremony of newly elected members of the Legislative Council, certain members-elect, without authority, altered the wording of the oath or added other contents to the oath, intentionally advocated the notion of "Hong Kong Independence", and insulted the country and the nation. Their oaths were thus determined by the person administering the oath as invalid. There have been differences of opinion and controversies over the validity of the oath mentioned above, and as to whether retaking of the oath should be arranged, within the Hong Kong society and even within the Legislative Council, and between the Legislative Council and the HKSAR Government. The normal operation of the Legislative Council has thereby been affected.
In view of the above circumstances, and in consideration of the fact that the relevant controversies involve the correct understanding and implementation of the relevant provisions of the Hong Kong Basic Law, in order to effectively combat and suppress "Hong Kong Independence" activities; safeguard national sovereignty and territorial integrity; protect Hong Kong residents' fundamental interests, and the prosperity and stability of the HKSAR, the Council of Chairmen of the National People's Congress Standing Committee (hereinafter referred to as "NPCSC") has submitted the Draft Interpretation, under the provisions of Article 67(4) of the Constitution regarding the power of the NPCSC to interpret laws and the provisions of Article 158(1) of the Hong Kong Basic Law which provide that "the power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress". In accordance with Article 158(4) of the Hong Kong Basic Law, the Committee for the Basic Law of the Hong Kong Special Administrative Region under the Standing Committee of the National People's Congress has been consulted on the Draft Interpretation. I will now provide explanations on the Draft Interpretation as follows.
1. To uphold the Hong Kong Basic Law and to bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China are the legal requirements and preconditions for standing for election in respect of or taking up the relevant public offices in the Hong Kong Special Administrative Region.
In June 1984, Comrade Deng Xiaoping clearly pointed out, "There must be a limit and standard for Hong Kong people administering Hong Kong, that is, the main body of Hong Kong people administering Hong Kong must be patriots". As to who is a patriot, Comrade Deng Xiaoping pointed out that, "The standard required of a patriot is to respect his or her own nation, and to sincerely and faithfully support the motherland's resumption of exercise of sovereignty over Hong Kong, and not to impair Hong Kong's prosperity and stability." The principle that the main body of Hong Kong people administering Hong Kong are to be patriots runs through the requirements regarding the Chief Executive, and the composition of executive authorities, the legislature, and the judiciary stipulated in the Hong Kong Basic Law. One of those important requirements is: the Chief Executive, principal officials, members of the Executive Council, members of the Legislative Council, judges of the courts at all levels, and other members of the judiciary must uphold the Hong Kong Basic Law of the Hong Kong Special Administrative Region of the People' s Republic of China and bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China. In the course of the drafting of the specific provisions of the Hong Kong Basic Law, this requirement was combined with the prevailing regime on oath taking upon assumption of office in Hong Kong to form the provisions of Article 104 of the Hong Kong Basic Law, namely, "When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China." Therefore, "to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China" and to bear "allegiance to the Hong Kong Special Administrative Region of the People's Republic of China" as stipulated by Article 104 of the Hong Kong Basic Law, are the legal content which must be included in the oath prescribed by the Article, as well as the legal requirements and preconditions for standing for election in respect of or taking up the public office specified in the Article.
Since the promulgation of the Hong Kong Basic Law, the Central Authorities and the HKSAR have all along understood and implemented the requirements under Article 104 of the Hong Kong Basic Law in the aforementioned way. When the Preparatory Committee for the HKSAR established under the National People's Congress in 1996 (hereinafter referred to as "the Preparatory Committee") prescribed the method for the selection of the first Chief Executive of the HKSAR, the method for the formation of the Provisional Legislative Council, and the specific method for the formation of the first Legislative Council, it provided that the candidates standing for the Chief Executive election and the Legislative Council election must uphold the Hong Kong Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, and pledge allegiance to the Hong Kong Special Administrative Region of the People's Republic of China. The Preparatory Committee was an authority established upon a decision of the National People's Congress to be responsible for the preparatory task to establish the HKSAR, and its decisions and requirements have legal effect. In accordance with the Hong Kong Basic Law and the aforesaid decision of the Preparatory Committee, corresponding requirements were enacted in section 16 of the Chief Executive Election Ordinance and section 40 of the Legislative Council Ordinance, and have been followed in past Chief Executive elections and Legislative Council elections. In view of the fact that a situation has arisen in the course of the election for the sixth Legislative Council of the HKSAR whereby individuals openly advocating "Hong Kong Independence" stood for the election and were elected, it is necessary to make it clear that anyone who stands for election in respect of or takes up a public office specified in Article 104 of the Hong Kong Basic Law must uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, and to bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China. Accordingly, Article 1 of the Draft Interpretation stipulates: "To uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China" and to bear "allegiance to the Hong Kong Special Administrative Region of the People's Republic of China" as stipulated by Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, are not only the legal content which must be included in the oath prescribed by the Article, but also the legal requirements and preconditions for standing for election in respect of or taking up the public office specified in the Article.
It is necessary to point out in particular that advocating and promoting "Hong Kong Independence" in Hong Kong amounts to an act of secession which is clearly prohibited by Article 23 of the Hong Kong Basic Law, and is essentially a violation of Article 1 of the Hong Kong Basic Law regarding "The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China", and Article 12 of the Hong Kong Basic Law regarding "The Hong Kong Special Administrative Region shall be a local administrative region of the People's Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People's Government" etc. For those who advocate "Hong Kong Independence", not only are they not qualified to stand for election in respect of or to take up the office of members of the Legislative Council, but should be subjected to legal liability in accordance with law.
2. On the meaning of "when assuming office... must, in accordance with law, swear [the oath]" as stipulated in Article 104 of the Basic Law of the HKSAR.
Article 104 of the Hong Kong Basic Law stipulates that "when assuming office" the relevant public officers "must, in accordance with law, swear [the oath]". According to the law and its practice, this provision has at least four levels of meaning: Firstly, oath taking is the legal prerequisite and required procedure for public officers specified in the Article to assume the relevant public office. No public office shall be assumed, and hence no corresponding powers and functions shall be exercised, and no corresponding entitlements shall be enjoyed by anyone who fails to lawfully and validly take an oath or who declines to take the oath. Secondly, the oath is a solemn declaration, which must comply with the legal requirements in respect of its form and content, namely that the conduct and manner of the oath taker must be sincere and solemn, and the oath and its content must accord with the wording of the oath prescribed by law and must be taken accurately, completely and solemnly. Thirdly, an oath taker is disqualified forthwith from assuming the respective public office specified in Article 104 of the Basic Law if he or she declines to take the oath. If an oath taker intentionally contravenes or desecrates the oath taking procedure and ceremony by means of conduct, words, attire or paraphernalia, etc., or intentionally alters, distorts the wording of the oath prescribed by law or reads out words which do not accord with the wording of the oath prescribed by law, such oath taking conduct shall also be regarded as not in compliance with the requirements in respect of oath taking in form or in substance. The oath so taken is invalid and the oath taker is disqualified forthwith from assuming office. As regards the situation where the non-compliance is not caused intentionally on the part of the oath taker, the oath taker may be permitted to retake the oath. Fourthly, there must be arrangement for the administration of oath. The person administering the oath has the duty to ensure the oath is taken in a lawful manner, and correspondingly, he or she also has the power to determine the validity of the oath. No arrangement shall be made for retaking the oath by a person who intentionally contravenes the requirements in respect of oath taking. Therefore, Article 2 of the Draft Interpretation stipulates: "The provisions in article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China that 'when assuming office' the relevant public officers 'must, in accordance with law, swear [the oath]' bear the following meaning.
(1)Oath taking is the legal prerequisite and required procedure for public officers specified in the Article to assume office. No public office shall be assumed, no corresponding powers and functions shall be exercised, and no corresponding entitlements shall be enjoyed by anyone who fails to lawfully and validly take the oath or who declines to take the oath.
(2)Oath taking must comply with the legal requirements in respect of its form and content. An oath taker must make the oath sincerely and solemnly, and must accurately, completely, and solemnly read out the oath prescribed by law, the content of which includes "will uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China" .
(3)An oath taker is disqualified forthwith from assuming the public office specified in the Article if he or she declines to take the oath. An oath taker who intentionally reads out words which do not accord with the wording of the oath prescribed by law, or takes the oath in a manner which is not sincere or not solemn, shall be treated as declining to take the oath. The oath so taken is invalid and the oath taker is disqualified forthwith from assuming the public office specified in the Article.
(4)The oath must be taken before the person authorized by law to administer the oath. The person administering the oath has the duty to ensure that the oath is taken in a lawful manner. He or she shall determine that an oath taken in compliance with this Interpretation and the requirements under the laws of the Hong Kong Special Administrative Region is valid, and that an oath which is not taken in compliance with this Interpretation and the requirements under the laws of the Hong Kong Special Administrative Region is invalid. If the oath taken is determined as invalid, no arrangement shall be made for retaking the oath.
It is necessary to point out in particular that the content of the above interpretation is inevitably the meaning of taking the oath in accordance with law, and has always been the basic requirements in respect of oath taking in Hong Kong. Since Hong Kong reunification, the Chief Executive, principal officials, members of the Executive Council, the vast majority of members of the Legislative Council, judges of the courts at all levels and other members of the judiciary have taken the oath in accordance with law when assuming office as required by the Hong Kong Basic Law. However, certain members of the Legislative Council have deviated from the basic requirements in respect of oath taking, with increasing intensity. In particular, when members of the sixth Legislative Council took the oath, certain members-elect, in the course of taking the oath, spoiled the solemn oath taking ceremony, chanted slogans which were unrelated to the oath, failed to take the oath in the form and wording prescribed by law, and even insulted the country and the nation. The conduct of these individuals is in form and in substance contrary to the requirement to take the oath in accordance with law, and is a serious challenge against the bottom line of the principle of "one country, two systems" and the provisions of the Hong Kong Basic Law. Therefore, further making clear the provisions in respect of "when assuming office... must, in accordance with law, swear [the oath]" in Article 104 of the Hong Kong Basic Law is required in order to uphold the Hong Kong Basic Law and the integrity of the law, and is also necessary to restore the order of oath taking by members of the Legislative Council.
3. The legal effect and responsibility of oath taking in accordance with law prescribed by Article 104 of the Hong Kong Basic Law
The taking of the oath is a solemn pledge made by an oath taker to his or her country and society in the form of an open declaration. It is legally binding, and a person who breaches the oath must bear corresponding legal responsibility. In relation to the requirement of Article 104 of the Hong Kong Basic Law, taking an oath in accordance with law to uphold the Hong Kong Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, and to bear allegiance to the HKSAR of the People's Republic of China, is a legal pledge made by public officers specified in that Article to the People' s Republic of China, and its HKSAR. The taking of the oath is an act required by law which has legal effect. An oath taker must truly agree with, and sincerely believe in the requirements of the oath, he or she must also be determined to abide by the oath; and at the same time openly declare that if there is a breach of oath, he or she is willing to bear the corresponding legal responsibility. This is inherent in Article 104 of the Hong Kong Basic Law. On this basis, Article 3 of the Draft Interpretation stipulates, "The taking of the oath stipulated by Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is a legal pledge made by the public officers specified in the Article to the People's Republic of China and its Hong Kong Special Administrative Region, and is legally binding. The oath taker must sincerely believe in and strictly abide by the relevant oath prescribed by law. An oath taker who makes a false oath, or, who, after taking the oath, engages in conduct in breach of the oath, shall bear legal responsibility in accordance with law."
You are invited to examine whether the Draft Interpretation and its Explanations are in order.
