I suppose that the drafters of the Basic Law thought it uncontroversial to include a requirement that the Chief Executive, Senior Officials, Judges and Members of the Executive and Legislative Councils should, upon assuming office, take an oath to uphold the Basic Law and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.
Official promissory oaths, including oaths of allegiance had, after all, been part and parcel of the colonial administration for over a century. The oaths were in Part IV of the Oaths and Declarations Ordinance, Cap. 11. They constituted an element of continuity which was no bad thing and could be easily adapted for the post-Handover regime. However, recent events, including high-profile court cases that disqualified six legislators and an Interpretation by the Standing Committee of the National People’s Congress on Article 104 of the Basic Law (“BL 104”) while two cases were being heard, have shown that oath-taking is anything but uncontroversial.
That should not really have been a surprise. English legal history shows that the allegiance element in official oaths had been used as a means to command loyalty and exclude dissenting voices for over three hundred years. People had suffered death, imprisonment and huge fines over them. Even today the oath of allegiance to the Queen that is sworn by Members of Parliament in the UK at the beginning of a new Parliament is problematic for some politicians who are not enthusiastic about a monarchical system of government.
These Members take the oath with reservations that are sometimes laid bare for all to see as proceedings in Parliament are televised. The late Tony Benn began his Parliamentary oath in 1992 with the words: “As a dedicated republican, and under protest, and solely to serve my constituents, I declare and affirm...”. The Labour M.P., Richard Burgon, elected to Parliament in 2015, prefaced his oath by saying “As someone that believes that the head of state should be elected I make this oath in order to serve my constituents.” And the famous hard-liner leftist, Dennis Skinner, ‘the Beast of Bolsover’, once took the oath saying: ”I solemnly swear that I will bear true and faithful allegiance to the Queen when she pays her income tax.” About half a dozen of the 2017 intake to Parliament qualified the words of the oath to make it clear that they regarded their first obligation in the House of Commons was owed to their electors, not the Queen.
The Clerks of Parliament who must administer the oath may grit their teeth when oaths of allegiance are made in this way but they invariably admit to the House these democratically elected representatives of the people
Some parliamentarians go further and avoid showy equivocation in oath-taking while at the same time making a forceful point about the symbolic value of the oath.
Sinn Fein Members of Parliament from Northern Ireland, who are committed to the re-unification of a divided Ireland, will not swear the oath of allegiance as a matter of principle and so never take up their seats in the House of Commons. This happens because electoral law confers the status of Member on successful candidates when they are elected but the Promissory Oaths Act 1868 requires them to take the oath of allegiance in order for them to take part in the business of the House.
This arrangement amongst Sinn Fein members meets with the approval of the electorate because they are returned regularly on the basis of their commitment to abstentionism. There are currently seven Sinn Fein M.P.’s. Choosing a representative in the legislature so that he or she will not represent you is perhaps the most extreme form of democratic protest.
The source of the problem with official oaths lies with the king who is regularly voted one of the worst monarchs in English history, Henry VIII.
In the early 1530’s Henry VIII wanted Pope Clement VII to annul his marriage to Catherine of Aragon. The Pope refused so Henry VIII rejected all papal authority in his kingdom and set himself up as the supreme head of the Church of England. He was free to appoint his own bishops, collect revenues and to confirm the validity of the annulment of his marriage to Catherine in 1533 and of his marriage to Anne Boleyn in the same year.
Many persons in public life, including the former Lord Chancellor, Sir Thomas More, were unhappy to take the Oath of Supremacy contained in the Act of Supremacy 1534 that required them to publicly acknowledge the new constitutional arrangements and reject the Pope. There were carrots enough for those who wanted to buy into the new regime, including buying confiscated church property at knock-down prices, but the Treasons Act 1534 was the very big stick that encouraged people in two minds about the new state religion to get on board.
This Act made it treason to disavow the new titles of Henry VIII. Establishing an act disavowal could be found in the circumstances surrounding a refusal to take the required oath. This was the case with Sir Thomas More who was one of the first to be convicted under the Treasons Act and was beheaded in 1535.
Over the next three hundred years the purpose of the Oath of Supremacy changed. Originally designed to flush out people of consequence who regretted the passing of papal authority, it became an effective tool to neutralise all kinds of religious and political dissent. The text of the oath did not just require the person making it to subscribe to the idea of the monarch as supreme governor of the country and the Church of England, but also required the maker to abjure other faiths and not lend support to foreign powers.
The persons who were required to take the oath included public officials, officers in the army, post holders in local government, clergymen and MP’s. An added refinement that was meant to catch persons who swore the oath for form’s sake was the introduction of the Test Acts in the seventeenth century. These required individuals to attend Church of England services and take the holy sacrament according to the Anglican rite. Failure to comply resulted in massive fines.
The price of securing religious and political conformity was to exclude sections of the population from civil society. For instance, chances of a decent education were limited as the only universities existing in England until 1832, Oxford and Cambridge, required members to take the Oath of Supremacy. Catholics were in the first rank of the politically neutered but, as the Reformation gave rise to splinter protestant groups who would not follow the Church of England, Anabaptists, Arians and Unitarians joined them.
Another group on the margins were the Quakers. This Christian sect formed in the 1650’s took seriously the injunction in the Gospel of St Matthew at 5, 34-37: “But I say unto you, Swear not at all; neither by heaven; for it is God’s throne. Nor by the earth; for it is his footstool: neither by Jerusalem; for it is the city of the great King. Neither shalt thou swear by thy head, because thou canst not make one hair white or black. But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil”. Quakers would therefore not take any oath that called on a Christian god. Jews, who had re-settled in England in the 1650’s, would also not take a Christian oath for obvious reasons.
The English Civil War in the middle of the seventeenth century gave rise to yet more oath taking designed to identify adherents of the Crown or Parliament. People found that a change of monarch or a new parliamentary regime meant a change in the requirements of the oath of allegiance. John Selden, a famous international lawyer, gave this practical advice to persons whose consciences were being stretched at this time by competing oaths: “Now oaths are so frequent, they should be taken like pills, swallowed whole; if you chew them, you will find them bitter; if you think what you swear, it will hardly go down”.
Things changed when the threat of foreign armies invading to install a Catholic monarch receded in the second part of the eighteenth century. The penal laws against Catholics were not enforced with rigour. Religious belief began to be regarded as a matter of private conscience rather than something that had to be imposed by the government of the day for national security interests.
People also began to be sceptical of religious belief and brought logic to bear on the subject. The English barrister and political scientist, Jeremy Bentham, thought the idea of man calling on God to observe a promise ridiculous. He wrote in a book in 1817 calling for the abolition of testamentary and promissory oaths: “On the supposition that, by man, over the Almighty, power should, to this or any other purpose, be exercised or exercisable, an absurdity, than which nothing can be greater cannot be denied to be involved: -man the legislator and judge, god the sheriff and executioner; -man the despot, God his slave.” [‘Swear Not at All’ (1817)]
Matters came to a head after Ireland joined England and Scotland in 1801 in the new ‘United Kingdom of Great Britain and Ireland’. The Irish Parliament was dissolved and Irish M.P.’s would thenceforth sit in the House of Commons. Voters in Ireland were overwhelmingly Catholic. The leading Irish political figure returned to Parliament in 1828, Daniel O’Connell, was a Catholic. He could not take his seat because of the Oath of Supremacy. Insurrection was threatened across the Irish Sea by his supporters.
The government of the day accepted that things had to change. The Roman Catholic Relief Act 1829 modified the Oath of Supremacy to make it acceptable to Catholics so they could take up seats in Parliament. Soon after similar measures were enacted to allow Quakers and other dissenters to take up public posts and become M.P.’s by permitting affirmations instead of oaths.
It was then the turn of Jews to be able to stand for Parliament in 1858. Next were atheists. They were allowed to affirm in 1888 after a series of court cases involving the non-believing M.P. for Northampton, Charles Bradlaugh. However, the last section of the population excluded from Parliament not because of religious beliefs, or the lack of them, was women. They had to wait another 40 years before being admitted to Parliament.
By the time Bradlaugh took his seat, the Oath of Supremacy had been watered down into a simple pledge of allegiance to the monarch. It has not changed in 150 years: “I, (Insert full name), do swear that I will be faithful and bear true allegiance to His/Her Majesty X, his/her heirs and successors, according to law. So help me God.”
It was this anodyne oath that was introduced into Hong Kong in the nineteenth century and lasted until the shadow of 1997 fell on the political landscape. The people called upon to swear it were all, until 1985, appointees and had no problems with it. After that year, things changed. Some Legco members in the colonial legislature were elected and were given the option of pledging allegiance to the Queen or pledging to serve the people of Hong Kong conscientiously. Most chose the latter.
It is perhaps a pity that an optional oath to serve the people of Hong Kong was not included in BL 104. It is likely that the recent constitutional ructions over oath-taking would not have occurred. As it is, I suppose the best advice I could give to any one taking an official oath now after the recent Interpretation who has misgiving is that given by John Selden nearly four hundred years ago which is swallow hard and do not think too much about what you are saying.