Legislators must take their oath in a manner and form that is lawful.
The Government issued the statement today in response to media enquiries on oath-taking by Legislative Council members-elect tomorrow.
The statement said the oath-taking at the start of the new LegCo term is a solemn ceremony and a requisite for legal compliance.
Basic Law Article 104 requires that, when assuming office, LegCo members 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, which is a constitutional requirement.
The form of the oath to be taken by LegCo members is prescribed by the Oaths & Declarations Ordinance. The ordinance also provides that the Clerk to LegCo shall administer the oath before the election of the Council President.
In discharging the duties of an oath administrator, the Clerk to LegCo can exercise necessary powers to ensure the oath-taking is conducted and completed lawfully and in an orderly manner.
According to the 2004 judgment of Justice Hartmann, the taking of an oath that accords with the requirements of Basic Law Article 104 is "a mandatory constitutional obligation imposed on all members-elect of LegCo".
A LegCo member must take the oath in a manner and form that accords with the ordinance.
Justice Hartmann also said "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 their oath in a manner or form inconsistent with the ordinance, thereby altering the substance of the oath itself, the oath offends Article 104 and will therefore be unlawful.
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.
The ordinance provides that any person who declines or neglects to take an oath duly requested which they are required to take shall vacate office or be disqualified from entering on it, the statement added.
