...I am not to challenge the oath institution, not to take oath requirement is unconstitutional. I am only to discuss on the scope and application of those principle. It cannot be a refusal of client on the formal requirement if the formal requirement is ambiguous or non existent. We say, formal requirement can be changed easily and over time, no doubt your lordships would further illuminate as to what those requirements would be.
The ODO sets out the form and manner. violation of the oath is laid down under section 24. These principles are affirmed in CA judgment.
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Our submission is that the case is engaged the right of election. It is not only related to election, but right to elect or be elected to the office. That office is to be commenced for 4 years, to serve the full four terms of the LegCo. Any provision to disallow the qualification of the member, must engage the right to election which includes the right to hold elected office. There is no point to have an election process, the person who voted by the people can be arbitrarily removed. The right of elect and right to hold elected office is engaged, must be dealt with rationality and proportionality. There must be objective and accessible justifications. Those justifications be confined to clear and unambiguous case of refusal of oath. There must be cogent evidence to establish these grounds. These grounds are to honor and not to frustrate the people’s will. There are not to exclude people holding different political belief.
(Mr Chan SC then proceeds to discuss three ECHR cases, to illustrate the right of election would be engaged in similar situations.)
In construing ODO section 21, read together with BOR 21 and BL26 must be narrowly defined and proportionately interpreted. And on disqualification of members of parliamentary, must call to the closest scrutiny, whether it is through legitimate aim to be achieved proportionately.
The question remains on the construction of ODO, whether one has decline or neglect depends on the conduct of member in particular circumstances amount the refusal to take the oath. Failing to comply the forms and matters may cover a wide range of matters, including signs, pins, etc.
Not every departure from that would constitute a refusal or decline, there must be reasonable range that departed from the prescribed formality. The clerk in making decisions is to decide whether it would render the oath invalid. He first asks himself a second question, is the departure or deviation so serious that constitute a refusal to take the oath. The ODO is to deal with the second question, if there are express guidelines, then the issue would be interpretation of such guideline. The guidelines is to be objective, and your lordship would be perfectly capable of doing it.
If there are no express guidelines, the question then passes from what an acceptable norm of behavior would amount to refusal. The departure from acceptable norms of behavior is an elusive concept, not clearly defined. The conduct would vary and depend on tradition, culture, history, value and practice of any institution.
For example, what is accepted at a HKU high table is different from what is accepted. It is a value judgment.
We are dealing with political institution and the Legco comprised of people coming from political affiliation and organization – we have to consider what is acceptable to the people in that circumstances.
(Mr Honorable Au J then intervenes: but oath taking is not part of debate or conducting in Legco in accordance to the constitution.)
No I am not arguing that oath taking is not following such. But we are to consider how people accept the matter, whether the line of acceptable deviation has been crossed. It is for the oath administrator to take into account the response of the people. For the president and oath administrator, he has a legislature to run, so in deciding the line, the clerk draw the line as a more liberal and accommodating line. The president affirmed the clerk decision and concede to the opinion of considerable member and to swear again.
Mr Mok asked the court to draw another line. A line of strict compliance, the “headmaster discipline line”.
The issue where the line is to be drawn, ultimatley is a mixture of law and politics.
I would not go further than that.
If the court is the final arbitrator, and the question is which line to be drawn, your Lordship must be sensitive to the values and traditions of the legislature. The Court should give due weight to oath administrator – I stress due weight but I would not use the concept of margin of appreciation.
Taking an oath – particularly an oath of allegiance – is political one. Before 1985, the HK oath of allegiance is sworn to the Queen, her heir and successor; at 1985, legislators can choose between swearing to the people of HK or to the Queen. In 1997, the oath is changed to allegiance to the HKSAR. Allegiance can be switched, abandoned, replaced due to changing circumstances. A faithful commitment has to be seen in such light.
The modern promissory oath could be traced back to the time of Henry VIII, who wanted to divorce Catherine of Aragon. The Pope refused to grant an annulment of the marriage. Henry VIII rejected papal authority and he declared himself as the supreme head of the Church of England. A lot of people are disappointed and opposed that. Henry VIII then introduced a compulsory oath of allegiance imposed allegiance. As we can see, Sir Thomas Moore refused to take the oath and was executed.
The oath is a political tool to exclude the non-protestant. It is enlightening to see the historical origin of the oath. (He then refers to authorities.)
In the following two centuries, promissory oaths were deployed as a means to exclude the non-conformists, such as the Roman Catholics, Quakers, Jews and even Protestant dissenters, from participating in public life .Relaxation was made at later period and was transplanted to HK.
Allegiance itself has a political connotation and political statement, coercive in nature. The oath has to be applied in modern world, in modern democracy. In human rights terms, democracy does not refer to political system but to diversity, plurality, tolerance, etc.
A promissory oath is a pledge under which a person appeals either to a deity or to his honour to conduct himself in a particular manner or in conformity with certain values or beliefs.
The purpose is to not to exclude political belief or influence others mind; not to reduce your belief and influence of mind.
The value of an oath is only as good as freedom of conscience, the oath taker is to accept the consequences to the breach of pledge. The breach of oath itself is not a perjury. In private law a promissory oath is not enforceable, but oath attract public importance because of the formalities. It is not an empty form of word only because of the law and that attaches penalty.
There is nothing inherent about a unilateral promissory. But the oath carries that significance because of the formality in the surrounding circumstances that may include saying the oath no more and no less. It is not about faithful commitment. But it about the act, the formalities to be observed. That has a bearing to what is solemnity.
Solemnity is to be determined by the formal requirement, it can be as solemn as the formal requirement prescribed. It has an objective standard, but it can be only objective if the requirement is defined by express order, circulars, internal rules, court judgment, or express order of the House [of parliament]. An order that turn something unclear to a clear matter.
The historical development shows that an oath of allegiance is not about intention, but going through an act, that intention is presumed, that the oath taker is to be bound by the oath if you comply with the act. It is of course a rebuttable presumption. The presumption is laid down unless there is clear evidence to rebut. There must be clear conduct, that conduct must be clear and compelling and cogent evidence to rebut it.
