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實質信念規定

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實質信念規定

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今次宣誓風波可說是一次過鏟起泛民在議會的力量。它的核心是三條規定 ─「嚴格形式和內容規定」 、 「莊重規定」、「實質信念規定」(註1)。當中的「實質信念規定」最為複雜。事實上,在3萬字的判詞裡,「Substantive Belief Requirement.」只出現過7次(註2)。

諷刺地,三規定叫人「行禮如儀」。應該沒有人想過,本土學生攻擊支聯會的「行禮如儀」有此政治現實意義。

試想想,假若宣誓人已符合「嚴格形式和內容規定」 和 「莊重規定」,為何還需要「實質信念規定」呢?或大家可否設想一個情景,可以符合「嚴格形式和內容規定」 和 「莊重規定」,而不符合「實質信念規定」的呢?

劉小麗例子

劉小麗例子是四個樣(註3)中唯一涉及「實質信念規定」的。她的案例也是最奇特的。若她不自行解畫,不在宣誓前後加插解釋,便不能指控她違反「嚴格形式和內容規定」,而控方也沒有檢控其違反「莊重規定」。但是她被區慶祥用「實質信念規定」釘死。

159. On this basis alone(每六秒讀一個字), I have no hesitation in coming to the conclusion that, objectively looking at the manner and way in which Ms Lau purported to take the LegCo Oath, Ms Lau did not manifest an intention to genuinely and faithfully accept (and hence commit and bind herself to) the obligations of the pledges embodied in the LegCo Oath. She has clearly failed to comply with the Substantive Belief Requirement.

判詞與人大釋法

區慶祥只針對宣誓過程的一刻,2016年11月7日的人大釋法比這更嚴厲,它甚至要求:「宣誓人作虛假宣誓或者在宣誓之後從事違反誓言行為的,依法承擔法律責任(註四)。」今次釋法可能種下思想審查的惡果,成為清洗立法會異己的工具。從泛民及其支持者在「如何應對」的議題上的意見看到:他們還以為可以廣積糧、與林鄭講數,還以為終審法院可以伸張公義。看來,現在不是泛民要與政府建立互相,更加迫切的是泛民之間要建立互相。

附錄

註一

准則二 依法宣誓意即宣讀誓章時須符合三規定:「嚴格形式和內容規定」 、「莊重規定」、「實質信念規定」。(高院上訴庭案例,首席法官; 釋法 )(註二) 准則三 增多或減少即違反「嚴格形式和內容規定」。(高院上訴案例,夏正民;釋法 )(註三)

註二

Substantive Belief Requirement

28 (3) sincerely believe in and strictly abide by the pledges in the oath at the time of taking the oath (“the Substantive Belief Requirement”).
See: the Interpretation, paragraphs 2(2), (3) and 3; the CA Judgment, paragraph 27.

32. Fifth, under the Substantive Belief Requirement, the oath taker in taking the oath must at the time of the oath also faithfully and genuinely commit and bind himself or herself to uphold and abide by the obligations set out in the LegCo Oath. See: the Interpretation, paragraph 3; the CA Judgment, paragraph 26 and 27, per Cheung CJHC, paragraph 72, per Lam VP; the CFI Judgment, paragraphs 31 to 33.

112 (2) The said words, conducts and manner adopted by Mr Law in purporting to take the LegCo Oath, on an objective construction, do not satisfy the Exact Form and Content Requirement and the Substantive Belief Requirement as explained above.

124. Moreover, given the fundamental constitutional importance of the requirement to take the LegCo Oath, and the utmost seriousness expected of the oath taker in making the constitutionally required pledges in the oath, the objective solemnness and sincerity required of in the procedure should be such that the oath taker must take the oath in such a formal and dignified manner that demonstrate to a reasonable person the oath taker’s high degree of respect and seriousness given to the oath taking procedure and the oath itself. This is also to demonstrate to the public the oath taker’s sincere and substantive belief in pledging his allegiance as required by the constitution.

159. On this basis alone, I have no hesitation in coming to the conclusion that, objectively looking at the manner and way in which Ms Lau purported to take the LegCo Oath, Ms Lau did not manifest an intention to genuinely and faithfully accept (and hence commit and bind herself to) the obligations of the pledges embodied in the LegCo Oath. She has clearly failed to comply with the Substantive Belief Requirement.

162. There is therefore no question that Ms Lau did not comply with the Substantive Belief Requirement in taking the LegCo Oath.

165. Finally, it is obvious that she intended to take the LegCo Oath in the slow-paced manner and made the Opening and Closing Statements in the way she did, which objectively viewed, did not comply respectively with the Substantive Belief Requirement and the Exact Form and Content Requirement. In law, she therefore declined or neglected to take the LegCo Oath when requested to do so on 12 October 2016.

註三

247. As the Plaintiffs have submitted, a case to disqualify a LegCo member has to be clear and the court looks at the totality of evidence in each case. It is the Plaintiffs’ case that in their assessments, these four cases are clear because they involve a number of features which, taken cumulatively in each case, clearly establish a case for disqualification. They also contain features over and above and are different from other cases such as (as pointed out by Mr Yu): Ms Lau’s Opening Statement and slow reading, Mr Law’s Opening Statement demonstrating his insincerity and his intentional intonation, Mr Yiu’s repeated insertion of the Extra Words as part of his oath, Mr Leung’s theatrical performance showing his insincerity and his use of props and theatrical conduct as and when he was taking the oath forming part and parcel of the same. The Plaintiffs therefore submit they formed the view on legal advice that these four cases best satisfied the clear ones, and that is entirely reasonable for them to act on legal advice as to the merits of each case and to proceed only on cases which are regarded as clear.

248. Mr Yu further emphasizes that the pursuit of clear cases by the CE or the SJ meets or accords with the Defendants’ submissions on the cogency of evidence required. The CE or the SJ recognize the need for a high threshold and adopt a prudent approach. This is, says Mr Yu, the antithesis of an abuse.
249. In this respect, it must be noted that the court must consider each case on its own facts and against its own context. As made clear in the CA Judgment (at paragraph 39): “In the final analysis, what is at stake is the compliance of a constitutional requirement of great significance. In any given set of facts, this can admit of one correct answer only.” (emphasis added). The Defendants never contend that the court must necessarily reach the same “correct answer” in each of the four cases here. The case against each of them differs, and they retain different legal teams and advance different defences. It is not the Defendants’ case that either the court should rule against all four Defendants or else it should rule against none of them.

註四

文件二十五
(2016年11月7日第十二屆全國人民代表大會常務委員會第二十四次會議通過)
三、《中華人民共和國香港特別行政區基本法》第一百零四條所規定的宣誓,是該條所列公職人員對中華人民共和國及其香港特別行政區作出的法律承諾,具有法律約束力。宣誓人必須真誠信奉並嚴格遵守法定誓言。宣誓人作虛假宣誓或者在宣誓之後從事違反誓言行為的,依法承擔法律責任。

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