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Government statement on oath-taking by members-elect of Legislative Council
     In response to media enquiries, the Government today (October 11) issued the following statement on the oath-taking by members-elect of the Legislative Council (LegCo) that is to take place tomorrow:

     The oath-taking of members upon the commencement of the new LegCo term is not just a solemn ceremony but also a requisite for compliance with the law. Article 104 of the Basic Law requires that, when assuming office, members of LegCo must, in accordance with law, swear to uphold the Basic Law and swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China. This is a constitutional requirement.

     The actual form of the oath to be taken by LegCo members is prescribed by the Oaths and Declarations Ordinance, Cap. 11 (the Ordinance) and set out in Schedule 2 of the Ordinance. Section 19 of the Ordinance also provides that the Clerk to LegCo shall administer the oath before the election of the President of the Council. In discharging the duties of an oath administrator, the Clerk to LegCo may exercise necessary powers to ensure that the oath-taking is conducted and completed in compliance with the law and in an orderly manner.

     According to a 2004 judgment of Mr Justice Hartmann, the taking of an oath that accords with the requirements of Article 104 of the Basic Law is "a mandatory constitutional obligation imposed on all members-elect of LegCo". A LegCo member must take his or her oath in a manner and form that accords with the Ordinance.

     Mr Justice Hartmann also pointed out that "an oath taken in accordance with Article 104 of the Basic Law is no empty form of words. It constitutes a solemn declaration, a form of promise which binds the maker to a particular code of conduct." If a member swears his or her oath in a manner or form that is inconsistent with the Ordinance, thereby altering the substance of the oath itself, the oath offends Article 104 of the Basic Law and will therefore be unlawful and of no legal effect. The Clerk to LegCo has no jurisdiction to administer such an oath. Should such a scenario arise, the Clerk should draw it to the attention of the LegCo President when one is elected for a ruling.

     Section 21 of the Ordinance provides that any person who declines or neglects to take an oath duly requested which he or she is required to take shall vacate office or be disqualified from entering on it.

     The Hong Kong Special Administrative Region Government attaches importance to working with the LegCo. The Government looks forward to all 70 members of the LegCo completing the oath-taking requirement tomorrow in an orderly manner in compliance with the law so that LegCo business in the new term may commence without delay.
Ends/Tuesday, October 11, 2016
Issued at HKT 16:48
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