Public Offices (Candidacy and Taking Up Offices) (Miscellaneous Amendments) Bill 2021
MR CHAN CHUN-YING(in Cantonese):
Deputy President, under Article 104 of the Basic Law, five types of public officers, including the Chief Executive, are required to take an oath in accordance with the law upon assumption of office. This arrangement had largely worked well after the return of sovereignty. Yet,when it came to the swearing-in of Members of the Sixth Legislative Council, some oath takers intentionally read out words which did not accord with the wording of the oath prescribed by law, and took the oath in a manner which was not sincere or not solemn. The most outrageous of all, of course, is that Sixtus LEUNG and YAU Wai-ching insulted China by pronouncing it as “Sheen-na” in the oath-taking process.
After the aforesaid incident, the Standing Committee of the National People’s Congress (“NPCSC”) adopted the Interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China on 7 November 2016 to stipulate that the wording of Article 104 of the Basic Law is 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. “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“. Eventually, the oaths taken by the six persons concerned, including LEUNG and YAU, were ruled by the court as invalid, and all of them were disqualified from assuming the office of a member of the Legislative Council in accordance with the law.
Apart from the Interpretation of Article 104 of the Basic Law adopted by NPCSC, the National Security Law implemented on 30 June last year also provides that a resident of the Hong Kong Special Administrative Region (“HKSAR”) who stands for election or assumes public office shall confirm in writing or take an oath to uphold the Basic Law and swear allegiance to HKSAR. On 11 August and 11 November last year, NPCSC made the Decision on the Continuing Discharge of Duties by the Sixth Term Legislative Council of the Hong Kong Special Administrative Region and the Decision on Issues Relating to the Qualification of the Members of the Legislative Council of the Hong Kong Special Administrative Region respectively. Under these two Decisions, certain acts are regarded as not fulfilling the legal requirements and conditions on upholding the Basic Law and bearing allegiance to HKSAR.
Against this background, the Government introduced the Public Offices (Candidacy and Taking Up Offices) (Miscellaneous Amendments) Bill 2021 (“the Bill”) into the Legislative Council in the first quarter of this year to amend various ordinances, thereby providing for matters relating to the requirements of oath-taking by certain public officers when assuming office. I am a member of the Bills Committee.
Deputy President, in fact, apart from the oath-taking incident happened in the Legislative Council in 2016, some radicals who were elected to the various District Councils (“DCs”) after the 2019 DC Election have also brushed aside local issues, such as environment, health, transportation and cultural facilities, and given themselves an “imperial sword” to turn DCs into a political monitoring body which only discusses politics but ignores people’s livelihood. According to the Government’s papers, the 18 DCs merely approved $159 million in 2020-2021, down by as much as 61% compared to 2019-2020.
Deputy President, I would like to first declare that I am a member of the Fight Crime Committee (“FCC”). There have been media reports that eight DCs refused to make financial allocations to the district FCCs last year. That has undoubtedly undermined FCC’s function of crime prevention. According to the figures released by the Police in February this year, the number of fraud cases increased by 7 337, or 90%, from 2019 to 2020. Among them, online shopping scams recorded a two-fold increase. Crime fighting has nothing to do with political stances. It will be against the interests of the public and the community if any DC members put their own political views above the duties of DCs.
Since the scrutiny of the Bill, many DC members have expressed disagreement about the need to swear to uphold the Basic Law and swear allegiance to HKSAR. They considered the taking of oath an endorsement of the Government’s request for DC members to take an oath and would rather quit than submit, which is a strange logic. I wish to point out that both the requirements in respect of oath-taking by DC members and an oath are consistent with the requirements set out in Article 104 of the Basic Law for specified public officers. We may have noted from the news report this morning that some DC members also agreed that the contents of the oath and that of the confirmation form for election are similar.
From last October onwards, the Government has requested its new appointees and serving civil servants to take an oath or sign a declaration in batch that they will uphold the Basic Law and bear allegiance to HKSAR. According to Secretary for the Civil Service Patrick NIP, over 170 000 civil servants have duly signed and returned their declaration; only 129 civil servants have ignored the request or refused to sign and return the declaration. The oath for civil servants is similar to that for public officers this time. Those who are committed to serving the public should find the contents of the oath perfectly acceptable. Also, the response from the vast majority of civil servants is positive.
Deputy President, in recent years, some people have repeatedly highlighted their “love for Hong Kong”, but deliberately avoided talking about loving the country. Worse still, they have even urged the foreign governments to sanction their own country and the HKSAR Government. I absolutely do not admit these people’s behaviour as “loving Hong Kong”. Article 1 of the Basic Law clearly stipulates that “[t]he Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China”. Hence, their “love for Hong Kong” means they love the Hong Kong that is a part of the People’s Republic of China.The love for Hong Kong is inseparable from the love for the country.
Previously, there were worries that the meaning of “upholding the Basic Law and bearing allegiance to HKSAR” was too vague to understand. In response, the Bill provides a positive and a negative list. The positive list includes, among others, “upholds the constitutional order of the Hong Kong Special Administrative Region established by the Constitution of the People’s Republic of China and the Basic Law”, “upholds the national sovereignty, unity, territorial integrity and national security of the People’s Republic of China”, “upholds the implementation of ‘one country, two systems’ principle, and safeguards the political structure of the Hong Kong Special Administrative Region”. These acts will be considered as upholding the Basic Law and bearing allegiance to HKSAR.
The negative list includes, among others, “refuses to recognize the constitutional status of the Hong Kong Special Administrative Region as a local administrative region of the People’s Republic of China”, ” solicits interference by foreign governments or organizations in the affairs of the Hong Kong Special Administrative Region”, “desecrates the national flag or national emblem, or regional flag or regional emblem, by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it”.These acts will be considered as not upholding the Basic Law and bearing allegiance to HKSAR. The lists are easy to understand at a glance.
The Bill also disqualifies persons who have been disqualified from entering on an office for declining to take an oath from standing as a candidate in the elections of the Chief Executive, Legislative Council or DC to be held within five years. At first, I was worried that this requirement might not be able to stop the disqualified persons from standing for the elections again, especially the Legislative Council election, after the five-year period. Fortunately, the Candidate Eligibility Review Committee to be established will assess the eligibility of candidates for the Chief Executive, the Election Committee Members and the Legislative Council Members. If these people insist on their anti-China and anti-government stance, it will be unlikely for them to run for the said elections. Meanwhile, the Bill also sets out specific oath-taking requirements, including that the oath-taking should comply with the oath-taking procedure and ceremony. Any oath taker who fails to comply will be immediately disqualified from holding the relevant public office.
Deputy President, I recalled on the eve of the 2016 Legislative Council Election, some pan-democratic candidates withdrew to avoid vote-splitting. At that time, there were already queries about whether their withdrawal constituted election manipulation. In recent years, some people again incited the voters to cast “blank votes”. During the deliberation of the Bills Committee, government officials clearly pointed out that the aforesaid acts would be considered as not upholding the Basic Law and bearing allegiance to HKSAR. Under the Improving Electoral System (Consolidated Amendments) Bill 2021 to be scrutinized at the end of this month, there will also be penalties in this regard. It is believed that this will have certain deterrent effects against manipulating or undermining elections.
The Bills Committee has conducted in-depth discussions on two controversial issues, one of which was the punishment against disqualification from holding the office of a member of the Legislative Council or DC on the ground of breach of oath will start from the date of breach. In other words, the offender will immediately lose all his remuneration and allowances as a Member of the Legislative Council or DC member. Furthermore, the Secretary for Justice is empowered to apply for the suspension of his duties before a judgment is made by the court. It is believed that these rules should be able to minimize the impact on the Legislative Council, DCs and the community.
Deputy President, the Bill is in line with the relevant legislation and NPCSC’s decision on oath-taking by public officers. Moreover, it is highly practicable and conducive to the proper implementation of the principle of “patriots administering Hong Kong”. I therefore support the passage of the Bill.
I so submit, thank you, Deputy President.