Former Legislative Council president Jasper Tsang Yok-sing has said it is “obviously ridiculous” to believe that Beijing’s interpretation of the Basic Law means that lawmakers will not be allowed to retake their oaths of office if they had their first attempts invalidated.
The interpretation of the Article 104 of the Basic Law stated that “The person administering the oath has the duty to ensure that the oath is taken in a lawful manner… If the oath taken is determined as invalid, no arrangement shall be made for retaking the oath.”
Tsang was writing in his column in the AM730 newspaper on Monday, citing the examples of pro-Beijing lawmakers Wong Ting-kwong – who omitted the phrase “Hong Kong” in his oath – and Abraham Shek Lai-him – who read “administrative” as “administration.” He said that the pair should be allowed to be sworn-in again.
Tsang said that the interpretation did not explain how to deal with unintentional mistakes during the swearing-in of lawmakers.
He cited Zhang Rongshun, vice-chairman of the legislative affairs commission under the National People’s Congress Standing Committee, as saying that people who did not intentionally create a situation which strayed from the standard could be allowed to take their oaths again.
Tsang said another question regarding the interpretation related to who would have the power to determine if the mistakes in the oath were intentional.
“Some said that according to the interpretation, it was the oath administrator who has this power,” he wrote. “However, the power that the interpretation gave to the administrator was only to ensure the oath was valid. [The interpretation] did not say if the oath administrator should – or could – rule if the oath taker intentionally broke rules, and thus declined to take the oath.”
He said that neither the Basic Law, nor any other relevant laws, gave any power solely to the LegCo president or secretary-general to disqualify a lawmaker on the basis of an invalid oath.
Article 79 of the Basic Law stipulates that a lawmaker is no longer qualified for office when he or she is censured for misbehaviour or breach of oath by a vote of two-thirds of the members of the Legislative Council present.
Section 21 of the Oaths and Declarations Ordinance states that any person who declines or neglects to take an oath as duly requested shall vacate the office.
“If the interpretation has authorised this power, it is a significant amendment to the existing laws,” Tsang concluded the article.
Tsang’s point echoed some lawyers who took part in a silent march last week opposing the interpretation.
Eric Cheung, HKU Faculty of Law principal lecturer tells HKFP that Beijing is effectively amending, not clarifying the Basic Law. pic.twitter.com/JFVHJyXuNr
— Hong Kong Free Press (@HongKongFP) November 8, 2016
Judge Thomas Au Hing-cheung is to hand down a judgment in the case surrounding the oath controversy of two localist Youngspiration lawmakers on Tuesday, according to court records.