Little Hong Kong: What is an oath? (Part 43)

Last Friday, Justice Au disqualified four lawmakers – Nathan Law, Leung Kwok Hung, Lau Siu Lai, and Yiu Chung Yim – upon hearing the Chief Executive’s judicial review against the decision of the President of LegCo to allow the four members to re-take their oaths.  James To, member of the Democratic Party, who himself is a solicitor, called the ruling a “declaration of war” by the Government.

Politics or law?

In his judgment, Justice Au made it clear that the question was never a question of politics, but that of law.  The only question which he was to decide was whether, objectively, the four lawmakers had declined or refused to take their oaths.  If they had declined or refused to take their oaths, they would have to be unseated, and the President had no jurisdiction to allow them to retake their oaths.

Political motivations?

Of course, law is never in absence of politics.  A case may be affected by political motivations, no matter what question is being decided.  A judgment based on law is simply one way to justify a decision.  Whether this was the case in the disqualification of the four lawmakers – that’s up to you to decide.  But what we know is that the Government made a conscious decision to commence proceedings.

Must an oath be solemn?

Martin Lee, SC, argued that “as a matter of law,” there’s no requirement that an oath must be solemn.   But Justice Au was quick to point out that the NPCSC Interpretation specifically provides “An oath taker must take the oath sincerely and solemnly”.  But let’s disregard the law for now.  It’s a matter of common sense that an oath is a promise made to God.  There can’t be any doubt that an oath must be made sincerely and solemnly.

The only real argument that could be made is this – look, we all know the lawmakers didn’t make their oaths “by the books”, but as a matter of policy, should we disqualify elected lawmakers?  Justice Au’s judgment makes it clear that there shouldn’t be two sets of rules for oath making – one for lawmakers, one for everybody else.  All oaths should be objectively judged, all the same, to be sincere and solemn.  I sure made mine solemnly at my admission.  Otherwise, I wouldn’t be a lawyer.

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