Public Offices (Candidacy and Taking Up Offices)(Miscellaneous Amendments) Ordinance 2021

The Public Offices (Candidacy and Taking Up Offices)(Miscellaneous Amendments) Ordinance 2021 (Chinese: 2021年公職(參選及任職)(雜項修訂)條例) is an ordinance to amend the Oaths and Declarations Ordinance (Cap. 11) and other relating legislation which adds new requirements for the Chief Executive, Executive Council members, Legislative Council members and judges and other judicial officers, imposes oath-taking requirements on District Council members, and specifies requirements for candidates to swear to uphold the Basic Law and bear allegiance to the Hong Kong Special Administrative Region when assuming office or standing for election and also adds new grounds and mechanism for disqualification from holding the office or being nominated as a candidate.[1][2] The ordinance was seen as another round of the Beijing authorities to bar the opposition from standing in elections or holding public offices and also raised concerns on the bill's vague parameters of the oath with such over-reaching scope would undermine Hong Kong's judicial independence.[3]

Public Offices (Candidacy and Taking Up Offices)(Miscellaneous Amendments) Ordinance 2021
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Legislative Council of Hong Kong
  • An Ordinance to amend the Interpretation and General Clauses Ordinance to explain the meaning of a reference to upholding the Basic Law and bearing allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China; to amend the Oaths and Declarations Ordinance to include in Part IV of the Ordinance an oath to be taken by every member of the District Councils, the requirements for taking the oaths specified in that Part and the consequences of declining or neglecting to take an oath; to amend the Legislative Council Ordinance and the District Councils Ordinance to add new grounds for disqualification from being nominated as a candidate for election as a member of the Legislative Council or as a member of a District Council and for disqualification from being elected, and from holding office, as such a member, to remove the time limit within which proceedings may be brought by the Secretary for Justice against a person on the ground of disqualification from acting as such a member and to provide for suspension of functions and duties of such a member on certain of such proceedings being brought by the Secretary for Justice; to amend the Hong Kong Court of Final Appeal Ordinance to provide for application for leave to appeal to the Hong Kong Court of Final Appeal in relation to such proceedings; to amend the Chief Executive Election Ordinance to add new grounds for disqualification from being nominated as a candidate for election of the Chief Executive and from being elected as the Chief Executive; to amend the National Anthem Ordinance to add the oath-taking ceremony by members of the District Councils as an occasion on which the national anthem must be played and sung; and to provide for related matters.[1]
CitationOrdinance 13 of 2021
Territorial extentHong Kong
Enacted byLegislative Council of Hong Kong
Signed20 May 2021 (2021-05-20)
Commenced21 May 2021 (2021-05-21)
Legislative history
BillPublic Offices (Candidacy and Taking Up Offices) (Miscellaneous Amendments) Bill 2021
Bill published on26 February 2021 (2021-02-26)
Introduced bySecretary for Constitutional and Mainland Affairs Erick Tsang
First reading17 March 2021 (2021-03-17)
Second reading12 May 2021 (2021-05-12)
Third reading12 May 2021 (2021-05-12)
Amends
Interpretation and General Clauses Ordinance
Oaths and Declarations Ordinance
Interpretation and General Clauses Ordinance
Hong Kong Court of Final Appeal Ordinance
Legislative Council Ordinance
District Councils Ordinance
Chief Executive Election Ordinance
National Anthem Ordinance
High Court Ordinance
Electoral Affairs Commission Ordinance
Status: In force

BackgroundEdit

Article 104 of the Basic Law of Hong Kong and the Oaths and Declarations Ordinance (Cap. 11) originally stated that five categories of public officers, 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 must "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" when assuming office.[2] However, penalty for violating the oath was not specified in the laws, and the District Councillors were not included in the categories.

In the 2016 New Territories East by-election for the Legislative Council, pro-independence activist Edward Leung ran for the office and fared a better-than-expected result by obtaining more than 15 per cent of the popular vote. In the following general election in September, the returning officers unprecedentedly invalidated Edward Leung and five other localists' nominations for their pro-independence inclination.[4] The decision was challenged by the leading lawyers in Hong Kong, who questioned whether returning officers had the power to investigate the "genuineness" of candidates' declarations and accordingly disqualify their candidacies. In their joint statement, it wrote that "[the Section 40 of the Legislative Council Ordinance] does not give the returning officer any power to inquire into the so-called genuineness of the candidates' declarations, let alone making a subjective and political decision to disqualify a candidate without following any due process on the purported ground that the candidate will not genuinely uphold the Basic Law." It also wrote that "arbitrary and unlawful exercise of powers by government officials ... are most damaging to the rule of law in Hong Kong."[5]

In the end, there were still six localist candidates who ran on the "right to self-determination" of Hong Kong got elected with 19 per cent of total vote share. Two localist legislators-elect, Baggio Leung and Yau Wai-ching of Youngspiration used the largely ritual oath-taking ceremony on the inaugural meeting of the Legislative Council on 12 October 2016 to protest, asserting "as a member of the Legislative Council, I shall pay earnest efforts in keeping guard over the interests of the Hong Kong nation," displayed a "Hong Kong is not China" banner, and mispronounced "People's Republic of China" as "people's re-fucking of Chee-na". As a result, Leung and Yau, as well as some other pro-democrats' oaths were invalidated by the Legislative Council President Andrew Leung. Chief Executive Leung Chun-ying and Secretary for Justice Rimsky Yuen also launched a judicial review against the duo. On 7 November 2016, the National People's Congress Standing Committee (NPCSC) controversially interpreted Article 104 of the Basic Law of Hong Kong to "clarify" the requirements that the legislators need to swear allegiance to Hong Kong as part of China when they take office, stating that a person "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"[6] should be barred from taking their public office and cannot retake the oath. As a result, Baggio Leung and Yau Wai-ching were unseated by the court, followed by four other opposition legislators, Leung Kwok-hung, Nathan Law, Lau Siu-lai and Yiu Chung-yim who were also disqualified for their oath-taking manner on 14 July 2017.

Another wave of disqualification of opposition candidates occurred in the subsequently postponed 2020 Legislative Council election, where 12 opposition candidates including four incumbent legislators Alvin Yeung, Kwok Ka-ki, Dennis Kwok and Kenneth Leung and also four incumbent District Councillors Tiffany Yuen, Lester Shum, Fergus Leung and Cheng Tat-hung were also barred from running. Despite Chief Executive Carrie Lam's reassurance on the four incumbent legislators' eligibility to serve in the extended Legislative Council term, the National People Congress Standing Committee (NPCSC) on 11 November 2020 ruled in a decision which barred Legislative Council members from supporting Hong Kong independence, refusing to recognise Beijing's sovereignty over Hong Kong, seeking help from "foreign countries or foreign forces to interfere in the affairs of the region" or committing "other acts that endanger national security", targeting the four sitting legislators. On the same day, the SAR administration announced that four legislators had been stripped of their seats with immediate effect.[7] In response, the 15 remaining pro-democracy legislators announced they would resign en masse in solidarity with the disqualified members, leaving the legislature with virtually no opposition.[8]

On 30 June 2020, the National People Congress Standing Committee (NPCSC) imposed the national security law on Hong Kong, which stipulates that a candidate 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 the Hong Kong Special Administrative Region in accordance with the law besides other new restrictions,[2] which required the amendment to the existing local legislation to implement the new requirements imposed by the NPCSC.

ContentsEdit

According to the government's press release, the bill mainly comprises the following six key areas of amendments which seek to:[2]

  1. amend the Interpretation and General Clauses Ordinance (Cap. 1) to add the legal requirements and conditions of "upholding the Basic Law and bearing allegiance to the Hong Kong Special Administrative Region" with reference to the 2016 NPCSC Interpretation, the national security law and the 11 November 2020 NPCSC's "Decision on Issues Relating to the Qualification of the Members of the Legislative Council of the Hong Kong Special Administrative Region";
  2. impose an oath-taking requirement for District Council members which would be required with the same criteria as other public officers under Article 104 of the Basic Law;
  3. lay out the concrete oath-taking requirements in the Oaths and Declarations Ordinance (Cap. 11), including that the oath-taking should comply with the oath-taking procedure and ceremony; 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;
  4. specify the arrangement of the oath administrator by standardising the arrangement for the Chief Executive or a person authorised by the Chief Executive to administer the oaths for Executive Council members, Legislative Council members, judges and other judicial officers, and District Council members;
  5. amend the Legislative Council Ordinance (Cap. 542) and the District Councils Ordinance (Cap. 547) to specify that a person who has breached an oath, or failed to fulfil the legal requirements and conditions on upholding the Basic Law and bearing allegiance to the Hong Kong Special Administrative Region will be disqualified from holding the office; and provide for the mechanism in case of such a breach or failure; and
  6. introduce restriction in Chief Executive, Legislative Council and District Council elections such that persons who have been disqualified from entering on an office for declining or neglecting to take an oath, breached an oath or failed to fulfill the legal requirements and conditions on "upholding the Basic Law and bearing allegiance to the Hong Kong Special Administrative Region", would be disqualified from being nominated or elected in the relevant elections held within five years.

ConcernsEdit

Some concerns regarded the "negative list" which proscribed unpatriotic acts in the bill was far too vague and could put judges and politicians under intense pressure if their rulings or voting patterns were viewed as challenging the government. The bill intended to include the community-level District Councilors to be scrutinised for their oath-taking manners, was expected to pave the way for mass disqualification of the pro-democracy councillors who humiliated Beijing when they won District Council election by a landslide in 2019 amid the historic anti-government protests. The ranks of judges in Hong Kong, including leading foreign jurists, must also take oaths to Hong Kong under long-standing requirements, would also come under the new layer of outside political scrutiny. "These references are extremely vague and it creates more possible complications for how the judiciary itself has to regulate judges against these new standards," University of Hong Kong law professor Simon Young said. "There is still time to clarify things... the point is we should not be defining these specific parameters of the oath in such vague ways with such over-reaching scope that it could undermine judicial independence."[3]

PassageEdit

The Public Offices (Candidacy and Taking Up Offices)(Miscellaneous Amendments) Bill 2021 was passed by a 40-to-1 vote in the pro-Beijing-dominated legislature on 12 May 2021, with Civic Passion's Cheng Chung-tai the only one voted against.[9] Chief Executive Carrie Lam on 20 May signed the bill into the law which came into effect after it is published in the Gazette on 21 May.[10]

EffectsEdit

In the past six months before the bill passage, dozens of opposition District Councilors resigned for refusal to take an oath under the new law. Including resignations due to "personal reason" and the disqualifications resulting from receiving a prison sentence, there were at least 29 opposition District Councillors lost their seats at the time the bill was passed.[9][11]

District Constituency Member Party Resignation date
Central and Western Mid Levels East Ng Siu-hong Democratic 30 April 2021 (2021-04-30)[12]
Kennedy Town & Mount Davis Cherry Wong Kin-ching Civic 3 June 2021 (2021-06-03) (personal reason)[13]
Water Street Ho Chi-wang Independent 26 May 2021 (2021-05-26) (personal reason)
Eastern Heng Fa Chuen Christine Wong Yi Independent 31 March 2021 (2021-03-31) (personal reason)[14]
King Yee Tsang Yan-ying Independent 31 May 2021 (2021-05-31)[14]
Fortress Hill Jason Chan Ka-yau Independent 31 May 2021 (2021-05-31)[14]
Fort Street Karrine Fu Kai-lam Independent 31 May 2021 (2021-05-31)[14]
Sham Shui Po Mei Foo South Chau Yuen-man Civic 31 May 2021 (2021-05-31) (personal reason)
Wong Tai Sin Wang Tau Hom Carmen Lau Ka-man Civic 8 June 2021 (2021-06-08)
Chuk Yuen North Cheng Tsz-kin Independent 31 May 2021 (2021-05-31)
Kwun Tong Lai Ching Sheik Anthony Bux Civic 1 June 2021 (2021-06-01) (personal reason)
Hong Lok Chris Chan Ka-yin Independent 1 June 2021 (2021-06-01)[15]
Tuen Mun So Kwun Wat Ma Kee Democratic 31 May 2021 (2021-05-31)
Yuen Long Shap Pat Heung West Szeto Pok-man Action 18 31 May 2021 (2021-05-31)[16]
Fairview Park To Ka-lun Independent 30 April 2021 (2021-04-30)[16]
North Yan Shing Lam Shuk-ching Neo Democrats 31 May 2021 (2021-05-31)
Ching Ho Yuen Ho-lun Independent 31 May 2021 (2021-05-31)
Tai Po Tai Po Hui Nick Lam Ming-yat TPDA 11 May 2021 (2021-05-11)[17]
Kwong Fuk & Plover Cove Dalu Lin Kok-cheung TPDA 10 May 2021 (2021-05-10)[17]
San Fu Wu Yiu-cheong Neo Democrats 10 May 2021 (2021-05-10)[17]
Hong Lok Yuen Yiu Yeuk-sang Independent 16 May 2021 (2021-05-16) (personal reason)[15][17]
Sai Kung Kin Ming Leung Li Independent 31 May 2021 (2021-05-31)[18]
Kwan Po Lai Ming-chak Neo Democrats 30 April 2021 (2021-04-30)[18]
Sha Tin Kam Ying Ting Tsz-yuen Community Sha Tin 31 May 2021 (2021-05-31)[19]
City One Wong Man-huen Civic 3 June 2021 (2021-06-03)[19]
Kwai Tsing Kwai Chung Estate South Ivan Wong Yun-tat Independent 31 May 2021 (2021-05-31)

ReferencesEdit

  1. ^ a b "Public Offices (Candidacy and Taking Up Offices) (Miscellaneous Amendments) Bill 2021" (PDF). Legislative Council of Hong Kong.
  2. ^ a b c d "Public Offices (Candidacy and Taking Up Offices)(Miscellaneous Amendments) Bill 2021 gazetted today". Hong Kong Government. 26 February 2021.
  3. ^ a b "Concerns mount that new Hong Kong law on patriotic oaths could trap judges". Reuters. 16 March 2021.
  4. ^ "梁天琦遭選管會 取消參選資格". Stand News. 2 August 2016.
  5. ^ Ng, Joyce (3 August 2016). "Lawyers question power of returning officers to disqualify Hong Kong poll candidates". South China Morning Post.
  6. ^ "Interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China by the Standing Committee of the National People's Congress" (PDF). www.elegislation.gov.hk. Retrieved 2018-01-05.
  7. ^ "Booted out". The Standard. 12 November 2020.
  8. ^ "Hong Kong pro-democracy lawmakers resign after China ruling". BBC News. 12 November 2020.
  9. ^ a b "HKSAR's legislature requires district councilors to take oath". China Daily. 13 May 2021.
  10. ^ "CE signs Public Offices (Candidacy and Taking Up Offices)(Miscellaneous Amendments) Ordinance 2021 (with photos)". Hong Kong Government. 20 May 2020.
  11. ^ "全港區議員快要宣誓 逾30人已辭職或表明拒誓 但民主派主導區議會形勢不變". 法廣. 2021-05-13.
  12. ^ "Central and Western DC Members". District Council website.
  13. ^ "公民黨黃健菁宣布因健康理由 辭任中西區區議員一職". 頭條日報.
  14. ^ a b c d "Eastern DC Members". District Council website.
  15. ^ a b "【Emily】兩區議員辭職 姚躍生:以曾為民選議員為榮". 明報. 2021-05-18.
  16. ^ a b "Yuen Long DC Members". District Council website.
  17. ^ a b c d "Tai Po DC Members". District Council website.
  18. ^ a b "Sai Kung DC Members". District Council website.
  19. ^ a b "Sha Tin DC Members". District Council website.

External linksEdit