2017 3rd Annual International Conference on Modern Education and Social Science (MESS 2017) ISBN: 978-1-60595-450-9 The Research on the Oath of Office System in Hong Kong and Macao Wang-Wang Northwestern Polytechnical University, Xi'an 710072, PR China [email protected]

Key words: Hong Kong Special Administrative Region (HKSAR), Macao Special Administrative Region (MSAR), Chief Executive, Oath of Office, Supervision

Abstract: The oath of office system has been implemented since the return of Hong Kong and Macao according to the basic laws and conventions, this is significantly conducive to train national unity consciousness of civil servants in Hong Kong and Macao as well as clear the superiors-inferiors of the central and local governments. However, it shall be noticed that the oath of office system in Hong Kong and Macao still has some problems, such as variable site for oath of office, ambiguous deponent, imperfect pledge, etc. These problems deserve high attentions and further study to perfect the oath of office system by making laws or issuing government decree, so that it can serve civil servants in Hong Kong and Macao better and even train and enhance the law consciousness of the public.

Implementation of Oath of Office in Hong Kong and Macao In HKSAR, article 104 of the Basic Law of the Hong Kong Special Administration Region (hereinafter referred as the Basic Law of Hong Kong) regulates that “chief executives, main officers, members of executive council, senators of the legislative council, judges of all level courts and other judicial officers in HKSAR must make a pledge at assumption of duty to advocate the Basic Law of Hong Kong and give allegiance to HKSAR of the People's Republic of China”. However, the Basic Law of Hong Kong has no regulations on the vows and affiant (subjects receiving the constitutional oath). Then, whether vows shall be defined clearly? Whether the deponent for the oath of chief executive shall be the state president or prime minister of the State Council? Although these haven’t been regulated in the Basic Law of Hong Kong, it can deduce according to other regulations of the Basic Law of Hong Kong as well as the legal status of HKSAR as well as the chief executives that the deponent for the oath of chief executives shall be the prime minister of the State Council.[1] However, the oath of office of the fourth chief executive, Leung Chun-ying on the 15th Anniversary of Hong Kong’s return as well as the Inauguration Ceremony of the fourth government of HKSAR on July 1st, 2012 was supervised by President . This doesn’t violent the Basic Law of Hong Kong since no regulations on the deponent are available in the Basic Law of Hong Kong. Supervision by the state president is the state’s over specification treatment to the government of special administrative region. However, chief executives are only vice prime minister and their oath of office supervised by the prime minister of the State Council is already enough. State president is the head of the state and enjoys a high position. It is inappropriate to invite the state president to supervise the oath of office of chief executives in special administrative region. Otherwise, who is appropriate to supervise the oath of office of the prime minister of the State Council who has higher political level than chief executives? If the oath of office of the prime minister of the State Council is supervised by the state president, the prime minister of the State Council is equal to chief executives of special administrative regions. Therefore, inviting the state president to supervise the oath of office of chief executives of special administrative regions is obviously inappropriate in all reasons. Therefore, combining the Basic Law of Hong Kong and political levels of chief executives, to declare superiors-inferiors between central government and local governments as well as among the state president, prime state of the State Council and chief executives, it shall stipulate clearly that

881 the oath of office of chief executives shall be supervised by prime minister of the State Council through legislation or releasing government decrees. Of course, the state president can be present, but shouldn’t participate directly. This can reflect that the special administrative region is a “local” and chief executives are “subordinates” of the prime minister of the State Council. In China, superiors and inferiors shall be clear even over specification political treatment is given to chief executives and other main officers in special administrative regions. In addition, no regulations on that vows for chief executives of the HKSAR cover laws of Hong Kong including the Basic Law of Hong Kong as well as laws made by the central government but is applicable Hong Kong are available yet. However, conventions shall be formed in practice. On July 1st, 1997, vows of Tung Chee-hwa, the first chief executive, are that “I, Tung Chee-hwa, hereby pledge to assume the chief executive of Hong Kong Special Administrative Region of the People’s Republic of China and swear to advocate the Basic Law of Hong Kong Special Administrative Region, devote myself to the Hong Kong Special Administrative Region of the People’s Republic of China, attentiveness to duties, abide by the law, be a man of integrity and always work in the public interest, serve for the Hong Kong Special Administrative Region and be responsible for the Central People’s Government and Hong Kong Special Administrative Region of the People’s Republic of China”. On June 24th, 2005, the vows of Donald Tsang, the second chief executive, are same with those of Tung Chee-hwa (except for the name). On July 1st, 2012, vows of Leung Chun-ying, the third chief executive of Hong Kong Special Administrative Region, were same with those of previous two chief executives except for “responsible for the Central People’s Government and Special Administrative Region of the People’s Republic of China” at the end, with “Hong Kong” omitted. Besides, main officers of the special administrative region took the oath of office to the deponent after the oath of office of the chief executive under the leadership of chief secretary for administration. Vows are same with those of chief executives expect for the name, no “responsible for the Central People’s Government and Hong Kong Special Administrative Region of the People’s Republic of China” and ended with the “Serve for the Hong Kong Special Administrative Region”. This also conforms to juridical logics and reasons, because the chief executive is responsible for the central government on the behalf of the special administrative region, but rest subordinates have no such authority. From the first to the third chief executives of Hong Kong, the oath of office in 1997 was held by the state president and supervised by the prime minister of the State Council. The Chief Secretary for Administration led main officers and the chief judge of Court of Final Appeal led judges of the Court of Final Appeal to take the oath of office successively. The oath of office in 2007 was held by the Secretary General of the State Council and supervised by the prime minister of the State Council. The Chief Secretary for Administration led main officers to take the oath of office. Compere of the oath of office in 2012 was unknown, but it was under the supervision of the state president. Besides, the executive council of the Hong Kong Special Administrative Region made the oath of office on the Inauguration Ceremony of the new chief executive under the supervision of the new chief executive. Vows were same with those of main officers. On December 20th, 1999, vows of the Hau-wah, the first chief executive of Macao Special Administrative Region, are that “I hereby assume the chief executive of Macao Special Administrative Region of the People’s Republic of China and will surely advocate and be responsible for the basic laws of Macao Special Administrative Region of the People’s Republic of China, devote myself to the People’s Republic of China and Macao Special Administrative Region, attentiveness to duties, abide by the law, be a man of integrity and always work in the public interest, protect Macao’s stability and development, and be responsible for the Central People’s Government and Macao Special Administrative Region”. , the prime minister of the State Council was the deponent. Subsequently, main officers, chairman of the legislative council, chief judge of the Court of Final Appeal and chief procurator of the procuratorate of the Macao Special Administrative Region walked on the rostrum and made the pledge. Entrusted by Zhu Rongji, Edmund Ho Hau-wah supervision the oath of office and Chen Limin, the director of the Secretariat for Administration and Justice led the oath. Moreover, vows for members of the Executive Council,

882 senators of the Legislative Council, judges, procurators as well as chief executives and the vows for the main officers, chairman of the Legislative Council, chief judge and chief procurator of Court of Final Appeal in Macao Special Administrative Region have one difference: the latter group has to swear allegiance to the People’s Republic of China except for the oath of office. This has been stipulated clearly in Article 101 and Article 102 in the Basic Laws of Macao Special Administrative Region (hereinafter referred as the Basic Laws of Macao).[2] On December 20th, 2009, vows of Sai On, the second chief executive of Macao, are that “I, Fernando Chui Sai On, hereby pledge that I assume the chief executive of Macao Special Administrative Region of the People’s Republic of China and swear to advocate and be responsible for execution of basic laws of Macao Special Administrative Region of the People’s Republic of China, be loyal to the People’s Republic of China and Macao Special Administrative Region, attentiveness to duties, abide by laws, be a man of integrity and always work in the public interest, protect Macao’s stability and development, protect Macao’s stability and development, and be responsible for the Central People’s Government and Macao Special Administrative Region”. This was supervised by the president Hu Jintao. The vows are same with those of the first chief executive in 1999, but the deponent changes from prime minister of the State Council to the state president. Obviously, vows of chief executives and main officers of Hong Kong are different from those of Macao to some extent. Personnel who take the oath of office differ due to the different political system. For example, Macao Special Administrative Region is equipped with procuratorial organization and there’s the procedure of oath of procurators. However, this is absent in Hong Kong Special Administrative Region since there’s no procuratorial organization in Hong Kong. Macao and Hong Kong have one common that deponents for the oath of office might be prime minister of the State Council or the state president. This has no explicit regulations on laws and government decrees. Since Macao and Hong Kong have returned to the People’s Republic of China for a short period, it is difficult to form constant conventions. As a result, explicit provisions that oath of office of chief executives in special administrative regions shall be supervised by prime minister of the State Council shall be given through legislation or government decrees. Besides, the new chief executive shall be responsible for leading main officers to participate in the constitutional oath-taking ceremony in Beijing.

Meaning to Oath of Office in Hong Kong and Macao Frankly speaking, the constitutional oath-taking system is just a procedural system which won’t change the established fact that civil servants who shall perform the oath-taking procedure have been elected. This is because the legality for civil servants who shall perform the oath-taking procedure acquiring the public office lies at the election, which is unrelated with the follow-up oath-taking procedure. Then, why chief executives and other important civil servants of Hong Kong and Macao Special Administrative Regions have to take such constitutional oath of office which belongs to the procedural system? It has five kinds of meaning as follows: Firstly, substantive justices of election or appointment of chief executives and other important officers who shall perform the constitutional oath of office (winning the election or consent of the legislative body) have been demonstrated, but this doesn’t represent they can be free from constraints of procedural justice. In a country that practices democracy and rule of law, civilians shall abide by both substantial law and procedural law as well as practice both substantial justice and procedural justice. Substantial law (substantial justice) and procedural law (procedural justice) interweave with each other and are difficult to be distinct from each other. Although substantial justice is the final goal, procedural justice is also important to safeguarding and enhancement of the substantial justice. Whether winning the election or consent of the legislative body, civil servants who shall take oath of office according to the Basic Laws of Hong Kong and Basic Laws of Macao shall perform this procedure. This not only enhances and demonstrates the fact of winning election or appointment, but also declares that the officer begins to assume the post at this moment and is

883 convenient for smooth connection of the public's power of knowing. Of course, serious punishment shall be given to civil servants who violent the oath of office and laws as well as those who refuse to take oath or make oaths according to regulations, as a warning to others. Secondly, this is beneficial to train the attentiveness of civil servants of special administrative regions, especial civil servants who have performed the oath of office. Although constitutional oath-taking is a procedural system, it “forces” civil servants who shall perform the oath-taking procedure according to Basic Laws of Hong Kong to bow to the Basic Laws of Hong Kong and make commitment of “attentiveness to duties, abide by laws, perform duties honestly and serve for the Hong Kong Special Administrative Region”. Witness includes not only present members, but also the publics who are watching the live broadcast through network or TV. In such open occasions, chief executives shall make solemn political swears and realize that the “power of the nominee finally comes from the people and solemn oath-taking procedure will give baptism and shock of inner heart of the affiant, and enhance their sense of mission”.[3] This is applicable to Macao Special Administrative Region. Thirdly, this is conducive to train consciousness of law-abiding (especially the basic laws) of common people in special administrative regions. On one hand, training consciousness of law-abiding of civilians comes from legal sanction for violation. On the other hand, it comes from imitation of civil servants’ law-abiding behaviors. Civilians will view law-abiding behaviors of civil servants as the evaluation standard of their own law-abiding behaviors. Before the returns of Hong Kong and Macao, they have experienced a long period of colonial rule during which the colonial authorities can desalinate publics’ concept of country by education policies, some people have poor consciousness of national unity. Even after the returns of Hong Kong and Macao, such situation wasn’t improved significantly. However, the oath of office of the special administrative region government reminds the publics that the governments of Hong Kong and Macao Special Administrative Regions are committed to China and abide by the basic laws that reflect the subordinate position of Hong Kong and Macao to China. Therefore, oath of office is beneficial for publics to realize the status of the special administrative region and train their consciousness of national unity. Furthermore, it will set a demonstration and guidance to common people in Hong Kong and Macao to abide by laws, especially the basic laws. Fourthly, although constitutional oath-taking is a procedural system, it neither influences the fact that the affiant have been elected or appointed, nor touch inner hearts of the publics, especially the participants as easy as substantial systems like judicial review system, interpretation of constitutional system, constitutional judicature, etc., because “it is an internal constraint rather than an external constraint”. [4] However, constitutional oath-taking becomes a procedure that has to be performed before the oath of office of affiants with the continuous practice. It “forces” affiants to make solemn commitment to be loyal to the basic laws according to basic laws or procedures, ceremonies and vows in the gradually formed oath-taking conventions, which will be converted into power and psychological pressure to urge affiants to protect basic laws during the follow-up execution of duties. Moreover, as a procedural ceremony, oath of office not only can give encouragement and psychological constraint to national officers to fulfill duties wholeheartedly, but also can establish a good image of a law-based government in publics. [5] Any violation of affiants against basic laws and vows in execution of duties in future is equal to violation of the solemn oath of office. Such political trust breaking also means that the affiant has disputed political quality, which will be punished by the public criticism and even legal sanction. These serious consequences will “force” affiants to be careful in execution of duty and remind themselves not to violate basic laws all the time, thus urging affiants to increase consciousness of law-abiding. Fifthly, implementation of oath of office in Hong Kong and Macao has positive significances to train constitutional consciousness and concept of country unity of affiants, government of the special administrative regions and even publics in these two regions. Before returns of Hong Kong and Macao, the central government implemented the policy of “One Country, Two Systems” innovatively according to practical situations at that time. However, the fact that Hong Kong and Macao are a part of China and HKSAR and MSAR are local governments under the direct

884 jurisdiction of the central government is beyond of deny and question. Although basic laws of Hong Kong and Macao are only implemented in these two regions, these basic laws and other laws are components of the Chinese legal system. Therefore, main officers and senators of a new period in special administrative regions must make oaths of office and it is necessary to make their political stand clear to the publics and central government that they will safeguard the nation unity and abiding by basic laws. Civil servants will be viewed as breaking the political trust if they think in one way and behave in another. Therefore, implementation of constitutional oath system in HKSAR and MSAR is also beneficial and necessary to train the concept of national unity of main officers, senators and civilians of special administrative regions. In a word, oath of office, serving as a procedural system and an essential practice before the assumption of post of affiants, is an open political attitude. “It is a solemn commitment of civil servants to the social public and is their open beliefs. Such open beliefs are similar with contracted commitment to all people”. [6] This will urge the training of law-abiding consciousness of affiants strongly. If affiant keeps the oath and abide by basic laws positively during the execution of duties, he will set an example for others to abide by constitutions. If the affiant violates the oath, he will surely receive public criticism and even legal sanction, which will warn others to abide by basic laws. Moreover, since constitutional oath ceremony is open, it will promote training of law-abiding consciousness of others presenting in the ceremony.

Defects of Oath System in Hong Kong and Macao and Suggestions for Improvement There are two defects of oath system in Hong Kong and Macao as follows: Firstly, vows are incomplete. A part of important contents is absent at the end of vows: which legal responsibilities the affiant shall be assumed for violating basic laws. Although vows shouldn’t be too long to explicit legal responsibilities, a general provision on legal sanction for violation of basic laws shall be given. For example, article 48 of Constitution of Republic of China which was passed on December, 1946 stipulates that oath of office for president shall be ended with “I agree to accept severe sanction of the state if violating the oath”. Hence, future perfection of oath shall have sentences like “I agree to accept severe sanction of the state if violating the oath” or similar statements to make the oath more precise. Besides, vows stipulated in article 104 of Basic Laws of Hong Kong haven’t swear allegiance to the People’s Republic of China or Central People’s Government of the People’s Republic of China. In addition, the Basic Laws of Macao have no provisions on vows, but article 102 stipulates that “except for oaths in article 101, chief executives, main officers, chairman of the Legislation Council as well as chief judge and chief procurator of Court of Final Appeal must swear allegiance to the People’s Republic of China”. This explains that vows of the first and second chief executives of Macao have “allegiance to People’s Republic of China”, which proves the implementation of article 102 of the Basic Laws of Macao. Hong Kong is an inalienable part of China’s territory and HKSAR is a local government subordinated to the central government. Vows of chief executive of HKSAR shall have statements of “allegiance to People’s Republic of China”. Perfection of vows in future shall learn that of Macao and added with statement of “allegiance to People’s Republic of China”. Secondly, there are no explicit laws and regulations on oath-taking place and deponent. Explicit provisions on place (local or Beijing), compere and deponent of the oath ceremony of new government of HKSAR shall be given by laws. At present, these follow the generally formed and instable conventions. In particular, it is inappropriate to invite the state president as the deponent, which is against superiors-inferiors between the central government and Hong Kong and Macao. This also deserves explicit provisions in laws or government decree. Although the basic laws have fuzzy provisions on oath of office, there are no intolerable flaws during practice due to the absence of imperfect conventions, which has great contributions to training consciousness of civil servants in special administrative regions, especially those who have made oaths to abide by basic laws. Frankly, the fact of fuzzy provisions of basic laws of Hong Kong and Macao on oath of office wasn’t been improved. The oath ceremony follows conventions which are generally stable, but still

885 have shortages. For example, there’s no explicit regulations on oath place (local or Beijing) and deponent. In practice, it is often that the state president comes to the HKSAR and MSAR as the deponent, which is disadvantageous to demonstrate their political status of “local government” and demonstrate the superiors-inferiors between central government and local governments. This shall be corrected. Nevertheless, basic laws of Hong Kong and Macao are strongly rigid and difficult to be amended. Since Hong Kong and Macao have unsatisfying political situations, oath of office could be improved and perfected by making laws or releasing government decrees instead of amendments of basic laws. This is a reliable man to normalize oath system while keeping stability of basic laws. It is expected to realize this goal as early as possible, thus making it serving better for training the consciousness of civilian servants and even common people in Hong Kong and Macao to abide by basic laws as well as the consciousness of national unity.

References: [1]Article 12 of the Basic Law of the Hong Kong Special Administration Region regulates that “Hong Kong Special Administrative Region is a local administrative region with high degree of autonomy in the People’s Republic of China and is directly under the jurisdiction of Central People's Government”. Article 45 regulates that “chief executives of HKSAR are determined through local votes or negotiation and are appointed by the Central People’s Government”. Article 12 stipulates that that HKSAR is “under the direct jurisdiction of Central People's Government” and Article 13 stipulates that chief executives of HKSAR are appointed by the “Central People’s Government”. The Central People's Government is the State Council where the prime minister assumes overall responsibility for the work. Therefore, chief executives of HKSAR are held directly responsible for prime minister of the State Council and their oath of office shall be supervised by the prime minister of the State Council. This agrees with legal principle and reason. According to Article 12 and item 1 of Article 45 in the Basic Law of Macao Special Administrative Region, it can conclude that the oath of office of chief executives of Macao Special Administrative Region shall be supervised by the prime minister of the State Council. [2]Article 101 of the Basic Law of Macao stipulates that “chief executive, main officers, members of the Executive Council, senators of the Legislative Council, judges and procurators of Macao Special Administrative Region must advocate basic laws of Macao Special Administrative Region of the People’s Republic of China, attentiveness to duties, be a man of integrity and always work in the public interest, be loyal to Macao Special Administrative Region of the People’s Republic of China and make a pledge according to laws”. Article 102 stipulates that “chief executives, main officers, chairman of the Legislative Council as well as chief judge and chief procurator of the Court of Final Appeal in Macao Special Administrative Region must swear to be loyal to the People’s Republic of China except for pledges regulated in Article 101.” [3] Nie Shuaijun. Reason of Establishing the Constitutional Oath-making System and Thinking on the Implementation Ways. Journal of Tianshui Administration Institute, 2015(3): 24. [4] Jiang Wei. Discussion on Establishment of Oath System Loyal to Constitutions. Studies in Law and Business, 2000 (5): 61. [5] Dai Lizhu. Discussion on Establishment and Significance of China’s Constitutional Oath System. Journal of Guangxi Administrative Cadre Institute of Politics and Law, 2015 (3):15. [6] Hong Yun. Discussion on Dilemma of China’s Constitutional Oath System and Solutions. Journal of Jixi University, 2015 (6).

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