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Tuesday, July 19, 2016, 23:53

Oath requirement is no invention

By Song Sio-chong

Song Sio-chong argues that there is nothing new — or unreasonable — about the requirement to make LegCo candidates sign a declaration to uphold the Basic Law.

On July 14, one day before the two-week nomination period for the September Legislative Council election began, the Hong Kong SAR Government announced that all candidates must complete and sign (to be endorsed by a witness) a declaration and promissory oath to uphold the Basic Law and pledge allegiance to the SAR. Those who refuse to do so and who advocate separatism during the election may be disqualified or considered as having made a false declaration and committed a criminal offense.

Oath requirement is no invention Radical opposition members defied this rule and threatened to challenge it through a judicial review, while moderate “pan-democrats” vowed not to sign such a declaration. Some news commentaries claim this is a new rule aimed at checking the rising tide of separatism in the SAR.

But contrary to such notions, the requirements for candidates to make a declaration and promissory oath are nothing new. They have long been stipulated in Section 40 of the Legislative Council Ordinance (Cap 542), and in Section 10 and 11 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap 541D). The Guidelines on Election-related Activities in respect of the Legislative Council Election published by the Electoral Affairs Commission also had the details. Being ignorant of those provisions, many “pan-democrats” have shown their naivety.

Two defects could cause a candidate to fail to get through the nomination procedure: an incomplete nomination form due to the absence of a declaration and promissory oath and a nomination form with a false declaration.

As each nomination form must be submitted to the Returning Officer (RO) for checking, an RO may refuse to accept any nomination form where there is a material omission and/or alteration of its content by virtue of Section 11(14) of the said regulation.

If a candidate’s submissions are in order but he or she acts on purpose against what has been alleged and promised in the nomination form during the election, he or she will be treated as knowingly and willfully making a false statement in material particulars and will be guilty of an offense of making a false statement. Even if that person wins in the election, he or she may be disqualified and be punished by a fine and imprisonment of up to two years under the Crime Ordinance (Cap 200).

If the conduct of that person is less severe, and they are identified as knowingly and recklessly making a false or incorrect statement in a material particular or knowingly omitting a material particular from an election-related document, he or she may commit an offense and be punishable by a fine and imprisonment up to six months with the disqualifying effects under Section 103 of the said regulation.

Therefore, the rules in question are all existing ones, nothing of which is new. What has been pronounced to be new is their implementation and enforcement in the wake of some recent separatist acts.

Some radicals have threatened to file a judicial review case in the High Court against the government decision. I believe such an application will be bound to fail for two obvious reasons:

First, Article 1 of the Basic Law provides that the SAR is an inalienable part of the People’s Republic of China (PRC), and Article 12 also stresses the SAR shall be a local administrative region of the PRC and come directly under the central government, that any advocacy of “Hong Kong independence” and separatism and/or subverting the central government is violating the Basic Law, particularly during elections, and cannot be tolerated and shall be punishable. The government should make this point very clear.

Second, all members of LegCo and of the judiciary are required to declare that they will uphold the Basic Law and pledge allegiance to the SAR under Article 104 of the Basic Law. There is nothing wrong in demanding any candidate who stands for the LegCo election must do so, upon nomination, as a matter of good practice and political ethics.

In most cases of judicial review, the issues concern whether the provisions in local ordinances contravene the Basic Law; or the local regulations contravene the Basic Law or local ordinances; or the conducts of government officials contravene the Basic Law, local ordinances or regulations. In the possible judicial review case, the issue will be whether the said provisions of the Basic Law can be enforced and implemented in such a way as stipulated in the aforementioned ordinances and regulations. It will eventually be a matter of interpretation of the Basic Law and the Standing Committee of the National People’s Congress should have the final say.

The author is a Hong Kong veteran commentator and professor at the Research Center of Hong Kong and Macao Basic Law, Shenzhen University.

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