This article is the first of several essays on the Oaths and Declarations Ordinance from practising barrister Gladys Li.
Against the background of the outpouring of public anger and indignation over the conduct of the two Youngspiration legislators, I hope that it is still possible for a cool, dispassionate look at the legal requirements in the Oaths and Declarations Ordinance, Cap. 11 of the Laws of Hong Kong (ODO), and it is with this aim that I am writing.
Part 1 deals with the general requirements in relation to oaths which applies to all oaths. It is necessary not to overlook this fact because since they are general requirements, what may be decided in the case currently being heard and in the upcoming challenges may apply to all oaths, including those made in court or before a Commissioner for Oaths. In particular, matters which have hitherto never concerned the person who administers the oath may now become a routine part of a duty of enquiry even if the administerer of the oath is not concerned with deciding whether the oath-taker has declined or neglected to take the oath, but its validity. Part 2 will deal with the oath to be taken by Legislators.
It is a fact that the ODO has not so far been held not to be in conformity with the provisions of the Basic Law and it therefore has not been invalidated by the Standing Committee of the National People’s Congress under the procedure provided for in Article 17 of the Basic Law. That is not, however, the end of the story, since our courts have the jurisdiction to rule that provisions in it do not conform with the Basic Law such as Articles 25, 27, 32, 38 and 39 as well as Articles 1, 15, 16, 21 and 22 of the Hong Kong Bill of Rights. In this piece, I do not consider the merits of any such arguments, although I shall refer to the apparent bias in favour of those professing religious beliefs in the general requirements of the ODO.
Bias in favour of religion
Part II of the ODO is headed ‘Oaths and Declarations in General’ and from the succeeding sections, it is clear that it applies to all oath-taking, not just to oaths in court proceedings and legal documents.
Section 5 provides that the oath may be administered and taken in the form and manner of holding the New Testament – or in the case of a Jew, the Old Testament – in his uplifted hand, and saying or repeating “I swear by Almighty God that…” followed by the words of the oath prescribed by law.
The underlying assumption is that only persons who profess the Christian faith will be given the New Testament and those of the Jewish faith, the Old. However, since the wording is permissive, anyone who claims himself or herself to have Christian beliefs (and there will be no interrogation as to the details of what exactly those beliefs are) may take the oath on the New Testament. There is therefore no enquiry as to the extent to which, if at all, the person concerned considers himself bound in conscience by the oath he is about to take. The book which he holds is symbolic only of the willingness to be bound in conscience but there is no enquiry as to the genuineness of the person’s faith or even that he is a Christian or of the Jewish faith. No baptismal certificate needs to be produced.
Section 5 provides for a person who is neither a Christian nor a Jew to have the oath administered to him in any manner which is appropriate to his religious belief. It does not provide that such a person must commence his oath by using the words “I swear by Almighty God….” Therefore, it must be the case that a person who claims to have religious beliefs which do not include a belief in Almighty God can, subject to provisions which I refer to below, use whatever words he chooses to signify that the oath he is taking is binding in conscience. The person administering the oath may have no idea of whether in fact there is such a religion and if so, what are the religious requirements, if any, for signifying that a person of that religion considers himself bound in conscience by his oath.
There is nothing in the ODO which uses the words “binding in conscience” or even states that it is the purpose of the oath. Nor is the word “oath” defined. What we see from section 5 is a relaxed and not an investigatory or enquiring approach on the part of the administerer of the oath to hand the person taking the oath the appropriate book if he claims to be a Christian or of Jewish faith. The administerer of the oath is not concerned with “policing” the sincerity or indeed the solemnity of the oath. It is all based upon the choice of the person who is taking the oath.
Section 6 provides that if an oath has been duly administered and taken, the fact that the person to whom the oath was administered had, at the time of taking the oath, no religious belief, shall not for any purposes affect the validity of the oath. This, too, is evidence of the relaxed approach which avoids the administerer of the oath having to investigate the religious beliefs of the person to whom the oath is administered and having to form a view as to whether the person has a religious belief, if so, what religion, whether it can properly be called a religion and whether there are any requirements which need to be met before the person considers himself bound in conscience.
Section 7 provides for any person who objects to being sworn. Such a person shall be permitted to make his affirmation instead of taking an oath for any purpose for which an oath is required by law. Section 7 also provides that an affirmation shall commence with the words “ I, [the person’s name], solemnly, sincerely and truly declare and affirm…” and then proceed with the words of the oath prescribed by law, omitting any words of imprecation or calling to witness and that an affirmation shall be of the same force and effect as an oath in the usual form.
The bias in favour of having a religious belief albeit not necessarily a belief in Almighty God is immediately evident from the language of section 7. The route of affirmation is only for those who object to being sworn. Is there any stigma attached to raising the objection and bolshily declaring that you will not swear because you are not religious? Even if there is not, you may feel that there is because you have to object to swearing so the norm must be swearing the oath and the exception affirming.
In reality, so far as I am aware, people are not generally asked if they object to swearing the oath. They may be asked if they have a religion and if so, on what book they wish to swear and given the option of the available holy texts. Again, not much inquiry. Otherwise, they are affirmed. No-one is asked “what is the method of oath-taking which you consider to be binding on you in conscience?” Sincerity is not an express requirement for the taking of the oath. Instead, it is assumed on the basis of what choice you make in the manner of your oath-taking, but it is not a prerequisite for repercussions to follow if you subsequently breach your oath.
Section 7(6) also provides in effect that someone can be treated as objecting to being sworn and can be required to affirm if it is not reasonably practicable without inconvenience or delay to administer an oath in the manner appropriate to his religious belief. Thus demonstrating another potential bias in favour of the two specified religions on the basis that there will always be a New Testament and an Old Testament readily available to the administerer of the oath. It is likely nowadays that other holy books will also be readily available.
But if oath-taking by those professing other religions in accordance with the manner appropriate to their religious belief is not reasonably practicable without inconvenience or delay, then they are treated as having objected to swearing an oath and made to affirm. This is at least one decision which the administerer of the oath has to make, namely “Is it inconvenient?” such as slaughtering a live animal might be or “Will it cause delay?” such as some elaborate ritual might.
Nonetheless, there is no suggestion that the administerer of the oath has to consider whether the person who is prevented from swearing in accordance with his religious beliefs can be sincere in his affirmation when his religious beliefs require him to make the oath in a particular way which is disallowed on the grounds of inconvenience.
Finally, under section 7, a person who is permitted to affirm (in accordance with section 7(6)) may also be required to affirm under section 7(7). Thus, a person denied the opportunity to swear in accordance with his religious beliefs may be taken to have declined or neglected to take the oath when he is asked to affirm instead and refuses to do so and thus to so require him is incompatible with freedom of religion and conscience.
Manner of oath-taking
Apart from what is set out above, how prescriptive is the ODO in terms of the manner of taking the oath?
To dispose of the absurd, no one would dream of questioning the validity of the oath taken by someone professing to be a Christian or a Jew on the grounds that the hand holding the New or Old Testament was not sufficiently uplifted to be visible. Yet if this is a formal requirement and we applied a “black letter law approach,” who knows whether this could be a ground for challenge. If the hand is not sufficiently uplifted, it could be argued not only that the oath was invalid but that the person by failing to uplift sufficiently had declined or neglected to take the oath in accordance with law.
Section 6 appears to provide for a multiplicity of situations including possibly catering for those who think that their evidence or oath may be regarded as more credible if they take the oath even though they have no religious belief. The point is that if someone were to take the oath and it were subsequently discovered that the person had no religion at the time, it would not affect the validity of the person’s oath and it certainly would not be a ground of challenge nor would he be deemed to have declined or neglected to take the oath. Neither the law nor any court will subsequently enquire into whether the oath he swore was binding in conscience and therefore whether he was “sincere” in taking the oath.
Further, if a person professes a religious belief but is neither Christian nor of the Jewish faith and has brought along a prayer shawl to wear during the oath-taking along with the text or other object which he considers sacred to swear upon as appropriate to his religious beliefs, I doubt whether anyone would object to that person being allowed to wrap himself or herself in the garment while taking the oath on any object that the person considers to be sacred. Unless the person is a Christian or of the Jewish faith, there are no particular “words of imprecation” or “calling to witness” which are required to be stated or are provided for in the ODO simply because the ODO is premised on the basis that there may be many religions with different holy objects and it is no business of the person administering the oath to go into the question of a person’s religious beliefs and whether objectively, the particular religion holds that object sacred such as to make the oath binding on the conscience of the oath-taker.
So can the person administering the oath take it upon himself to challenge the person’s professed belief and the manner of taking the oath? Perhaps, an extreme example would be if the person said he had a belief in motherhood and apple pie akin to religion and produced a book of his mother’s different recipes for apple strudel, apple turnovers, apple crumble and Tarte tatin on which he wished to swear. The person administering the oath may refuse to accept it as a religious belief but would probably not object if the loving son then held the recipe book aloft while making the affirmation.
What if another produced a copy of the Universal Declaration of Human Rights and wished to swear on this as a text in which he had a profound and abiding belief transcending all religions which the administerer of the oath refused to accept as valid? What if he then said that he had an objection to making an affirmation because he would not consider it binding on him in conscience? At that point, is the administerer of the oath compelled to decide that the person has already declined or neglected to take the oath or make the affirmation? Could he be compelled to affirm having told the person administering the oath that he would not regard it as binding in conscience? Having said that and nonetheless been informed that he faced a choice of being deemed to have declined or neglected to take the oath, he then affirms, would it be said that he had nonetheless declined to take the oath sincerely since he had declared in advance that it would not be binding on him in conscience and would he be obliged to vacate the office for which the oath-taking was required?
On my reading of the ODO, there is nothing to suggest a need to inquire, let alone confirm, that the method chosen by the oath-taker is one which he regards as binding him in conscience or that he has the religious beliefs he professes or that those religious beliefs impose any particular requirements for oath-taking. Rather, the requirements in these general provisions applying to all oaths and affirmations are intended not to be prescriptive as to the manner of taking the oath and to have minimal requirements as to the manner save that if it is not reasonably practicable to permit a person to take the oath in the form that he chooses, he may required to affirm even though this may be contrary to his religious beliefs. Thus the formal requirements will be satisfied irrespective of his conscience and religious beliefs.
He can be convicted of perjury if he knowingly gives untruthful evidence and cannot argue that the oath or affirmation was not binding upon his conscience as a defence to a charge of perjury. This also enables the application of any sanction prescribed by law for breach of oath irrespective of whether the person taking it regarded it as binding on his conscience or not. The latter issue is one into which no administerer of the oath needs to inquire nor is an enquiry necessary for any Court to make under the ODO whether the oath or affirmation is sincerely made and whether the person has bound himself in conscience by the method chosen by him.
This is an alternative purposive construction of the ODO leaving for another day the issue of whether the ODO is inherently incompatible with the rights and freedoms of religion and conscience. If the ODO looks not to matters of conscience and belief nor to matters of sincerity or solemnity but insists that the oath or affirmation be made which the law will treat as binding in conscience irrespective of the chosen manner, then the questions arising under the ODO can be more simply answered leaving the vexed issues of conscience, religious and other beliefs to be determined by others but not the administer of oaths and not by the courts.
Gladys Li is a practising barrister, former chairman of the Hong Kong Bar Association, founding member of Civic Party, member of HK2020 and board member of Civic Exchange.