*********************************************************
Following is a question by Dr Hon Kenneth Chan and a reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (November 13):
Question:
It has been reported that some members of the community have earlier proposed to stipulate that in the selection of the Chief Executive (CE) by universal suffrage in 2017, any person must swear to uphold the Constitution of the People's Republic of China (China's Constitution) before he is approved to be a candidate for the CE election; and that an Executive Council Member has expressed support for this proposal. In this connection, will the Government inform this Council:
(a) whether it has conducted internal discussions and related studies on the aforesaid proposal; if it has, of the details and conclusions of such discussions and studies; if not, whether the authorities will conduct such studies; if they will, of the details; if not, the reasons for that;
(b) given the existing legal requirement that a person elected as CE shall take the statutory Oath of the Chief Executive (Oath) before entering upon any of the duties of his office, whether the authorities have studied if the taking of the Oath by a person after being elected as CE and the taking of another oath by him prior to his becoming a candidate for the CE election in accordance with the aforesaid proposal will cause conflicts and confusion from a legal perspective; if the findings of the study are in the affirmative, how the authorities will deal with this situation; if the findings of the study are in the negative, of the justifications for that; and
(c) given that in the aforesaid proposal, the oath taken by a candidate for the CE election shall include a reference to the upholding of China's Constitution, and therefore anyone unwilling to swear to uphold China's Constitution may not become a candidate, whether the authorities have studied if the proposal complies with the requirement of the International Covenant on Civil and Political Rights that any citizen shall have the right to be elected at elections without distinction of political opinion; if the findings of the study are in the affirmative, of the reasons for that?
Reply:
Mr President,
The reply to the questions raised by Dr Hon Chan is as follows:
(a) The Chief Executive (CE) has announced on October 17 the establishment of a Task Force on Constitutional Development, with the target to issue the consultation document around the end of this year to formally launch the public consultation on the methods of selecting the CE in 2017 and forming the Legislative Council (LegCo) in 2016. We will handle the public consultation in an open, accommodating and pragmatic manner. We welcome members of the community to give specific suggestions on the method for selecting the CE in 2017. At this stage, we do not have any preconceived proposals, and will not comment on any specific proposal or suggestion.
(b) According to section 16(7) of the Chief Executive Election Ordinance (Cap. 569), a nomination of a candidate shall be accompanied by a declaration to the effect that he will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region (HKSAR).
Article 104 of the Basic Law also stipulates that when assuming office, the CE, principal officials, members of the Executive Council and of the LegCo, judges of the courts at all levels and other members of the judiciary in the HKSAR must, in accordance with law, swear to uphold the Basic Law of the HKSAR of the People's Republic of China (PRC) and swear allegiance to the HKSAR of the PRC.
According to section 16A(1) of the Oaths and Declarations Ordinance (Cap. 11), a person appointed or elected as the CE shall take the Oath of the CE before entering upon any of the duties of his office. Such oath is in line with the requirement of Article 104 of the Basic Law regarding the CE to swear in, and the requirement of Article 47 of the Basic Law that the CE must be a person of integrity, dedicated to his or her duties.
The oath taken by the CE pursuant to the Basic Law and other existing legislation is solemn and in compliance with the legal requirements. As mentioned above, the Administration will take into full consideration all the proposals received during the public consultation on constitutional development, but we will not comment on specific suggestions at this stage.
(c) The constitutional basis of the HKSAR lies in the Constitution of the People's Republic of China (Constitution) and the Basic Law. As mentioned in the Preamble of the Basic Law, "upholding national unity and territorial integrity, maintaining the prosperity and stability of Hong Kong, and taking account of its history and realities, the PRC has decided that upon China's resumption of the exercise of sovereignty over Hong Kong, a HKSAR will be established in accordance with the provisions of Article 31 of the Constitution, and that under the principle of 'One Country, Two Systems', the socialist system and policies will not be practised in Hong Kong." The Preamble also mentioned that "in accordance with the Constitution, the National People's Congress hereby enacts the Basic Law of the HKSAR of the PRC, prescribing the systems to be practised in the HKSAR, in order to ensure the implementation of the basic policies of the PRC regarding Hong Kong."
As to the constitutional status of the HKSAR, Article 1 of the Basic Law clearly provides that the HKSAR is an inalienable part of the PRC. Article 12 of the Basic Law also clearly stipulates that the HKSAR shall be a local administrative region of the PRC, which shall enjoy a high degree of autonomy and come directly under the Central People's Government (CPG).
Article 43 of the Basic Law stipulates that the CE shall be the head of the HKSAR and shall represent the Region. The CE shall be accountable to the CPG and the HKSAR in accordance with the provisions of the Basic Law.
Article 45 of the Basic Law provides that the CE shall be selected by election or through consultations held locally and be appointed by the CPG.
Article 48 of the Basic Law also stipulates that the CE shall lead the government of the Region, be responsible for the implementation of the Basic Law and other laws which, in accordance with the Basic Law, apply in the HKSAR, and to implement the directives issued by the CPG in respect of the relevant matters provided for in the Basic Law, as well as to conduct, on behalf of the Government of the HKSAR, external affairs and other affairs as authorised by the Central Authorities.
As reflected in the provisions of the Basic Law, the constitutional status of the CE is of great importance. Being the head of the executive authorities of the HKSAR and also the head of the HKSAR, the CE shall be responsible to both the CPG and the HKSAR pursuant to the Basic Law. It is, therefore, only natural and proper, and consistent with the constitutional order and political ethics, for the CE to uphold the Constitution, whether or not it is prescribed through legal means.
Ends/Wednesday, November 13, 2013
Issued at HKT 14:53
NNNN
