AN OATH: CONSTITUTIONAL DIALOGUE BETWEEN CHINESE LAW AND COMMON LAW

This Article provides an analysis that though there are many occasions that the courts in the HKSAR differ from the NPCSC in terms of the interpretation on the Hong Kong Basic Law, there are some occasions that common law and Chinese law agree, and the occasion to uphold the solemnity and legality of the oaths taken by public officers is one of those. The author compares the legal and political impact of an oath in the Eastern and Western world since ancient times. She further establishes her arguments that no matter by common law or Chinese law, the interpretation of Article 104 of the Hong Kong Basic Law would arrive at the same conclusion. Through detailed discussion on common law cases on the validity of an oath, the author observes that it is foreseeable that the legislators who breached the form as well as content of the Legislative Council of Hong Kong oath in 2016 would be disqualified if one paid attention to an earlier judgement in 2004 in relation to whether the format of swearing the oath may be deviated. The answer from the Court is "NO". The interesting point is that 12 years later there is an NPCSC Interpretation on Article 104 of the Hong Kong Basic Law, the content of which very much resembles common law principles on the validity of an oath and its legal implication if the oath is not sworn solemnly by legislators in the prescribed form. Therefore, the author argues that regarding an oath, common law and Chinese law agree.