TNAG-1454-FCO40-1976-Hong-Kong-oath-taken-by-members-of-Executive-and-Legislative-1986 — Page 30

Mr Leeks

FROM: PAUL FIFOOT

DEPUTY LEGAL ADVISER DATE : 29 MAY 1986

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OATHS OF ALLEGIANCE : EXECUTIVE COUNCIL

1. In principle, I see no difficulty about dispensing with the Oath of Allegiance for Executive Counsellors. In view of their reception of the proposal for dispensing with the Oaths of Allegiance for Legislative Counsellors, I would not expect the Palace to raise objections either. We would of course have to put the question to the Palace and, when we do so, I would think it would be sensible to put it in as wide terms as possible, i.e. as covering also judicial officers and clerks. In view of Hong Kong telno 1483, I do not want to have to go back to the Palace next year for yet another approval.

2. If my assumptions with regard to the Palace are justified, the problem is not so much dispensing with the Oath of Allegiance as to whether anything should replace it. Last year we provided an alternative to the Oath of Allegiance for Legislative Counsellors. That alternative was not a different form of an Oath of Allegiance but of the nature of an oath of office coupled with an oath to uphold the law of Hong Kong. Hong Kong telno 1625 suggests an adaptation of that oath of office for Executive Counsellors. However, to a great extent, the present Oath of Fidelity which is taken by Executive Counsellors is an oath of office. It provides that the attestor will "freely give [my] counsel and advice to the Governor for the good management of the public affairs of this Colony ... and that in all things [I] will be a true and faithful Counsellor." This corresponds in all its essentials to the proposal in paragraph 2 of Hong Kong telno 1625 that the attestor will "conscientiously and truly serve the people of Hong Kong as a member of the Executive Council. The only thing that is missing from the Oath of Fidelity of an Executive Counsellor is the oath to "uphold the law of Hong Kong".

3.

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Save to the extent that the proposed new oath relates to upholding the law of Hong Kong, it is therefore repetitive of the essentials of the Oath of Fidelity and I therefore very much doubt the purpose, both essential and dignified, of such a repetition. I would also doubt the sense of merely having an oath to uphold the law of Hong Kong, though I think one could add that provision at the end of the Oath of Fidelity.

4.

In short:-

1)

The form of the alternative to the Oath of Allegiance proposed in paragraph 3 of Hong Kong telno 1625 follows much of the form of the alternative Legislative Counsellor's Oath and substitutes an oath of office;

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