Abstract: Suggestions on Oath-taking / Declaration Requirement for Civil Servants

The legal basis for public officers to take an oath or sign a declaration falls under Article 6 of the National Security Law. The National Security law is not specifically aimed at civil servants unless they violate the Law. Over the years, civil servants have observed discipline, while the HKSAR Government has held very high requirements for their words and actions. The authorities have now made public the content of the oath or declaration. In principle, civil service organizations do not oppose the requirement. The question is how to formulate the details.

The penalty for public servants committing and convicted of any of the four offences stated in the National Security Law is stipulated in Article 35 of the Law: Anyone (including public officers) who is convicted of an offence endangering national security by a court shall be removed from his or her office upon conviction and disqualified from holding the post. This research report participates in the debates regarding “political neutrality of civil servants” and puts forward suggestions to fulfil the requirements of the National Security Law and addresses the doubts raised by civil servants. The relevant issues include:

• the civil servants’ responsibilities derived from pledging loyalty or signing the declaration;
• apart from the violation of the National Security Law, what words and actions constitute a breach of oath; and how to clearly distinguish between a “breach of oath” and a “violation of discipline”; and
• although the Civil Service Code has certain regulations on civil servants’ participating in political activities, their definitions and scope have not been updated along with the social circumstances after the anti-extradition law amendment bill movement movement. Guidelines for civil servants’ conduct online are particularly insufficient.

(1) Responsibilities derived from civil servants’ oath-taking or declaration

According to the requirement of the National Security Law, upholding the Basic Law and swearing allegiance to the HKSAR is the main component of the oath or declaration. Literally, “uphold” refers to defending or confirming a certain principle or settled decision, especially legal principles or decisions. To “uphold the Basic Law” means to uphold the fundamental clauses of the Basic Law, namely Articles 1, 12 and 159(4). Civil servants must, regardless of personal stance:

• acknowledge that the HKSAR is part of the People’s Republic of China;
• uphold the principles of One Country, Two Systems, including the Central Government’s exercise of sovereignty over Hong Kong and the HKSAR’s fundamental systems; and
• not support or participate in organizations, activities and behaviours endangering national security and confronting the principles of One Country, Two Systems.

All public words and actions, on or off duty, of civil servants, regardless of type of duty, rank, time of work, must satisfy the above requirements. 

Apart from the above basic principles, the HKSAR Government should make clear two more points: (1) Civil servants should not be considered as not upholding the Basic Law if they take a “modifiable as needed” position on provisions other than the fundamental clauses, because the Basic Law itself has a mechanism for its own amendment; and (2) Senior civil servants should take an oath. They should be more proactive in defending and promoting the Basic Law and the HKSAR’s systems compared to ordinary civil servants, who will have fulfilled the requirement of the declaration they sign by simply carrying out their duties and following the orders of their superiors. 

(2) What amounts to a “breach of oath”?

If a civil servant commits a National Security Law offence and is convicted by a court, he or she is certainly going against the fundamental provisions of the Basic Law and, hence, undoubtedly breaching his or her oath. However, the National Security Law offences are inevitably subject to thresholds regarding legal definitions, proof and conviction. What the HKSAR Government needs to clarify most is what conduct should be seen as a breach of oath based on a civil servant’s official status although it may not be incriminating under the National Security Law. We are of the opinion that there should be a high threshold for a “breach of oath”, limited only to speech and behaviour hostile or confrontational towards the Basic Law-defined One Country, Two Systems principles Supporting Hong Kong independence, supporting a referendum for self-determination, the abolishment of the Basic Law, the amendment of the Basic Law for the purpose of achieving Hong Kong independence and demanding the implementation of “One Country, One System”should fall into this category. The HKSAR Government should clearly list possible situations of a breach of oath by issuing guidelines. This kind of speech should be distinguished from general political speech and behaviour.

(3) “Uphold the Basic Law, bear allegiance to the HKSAR” — Is it equivalent to allegiance to the HKSAR Government?

According to the Civil Service Code, civil servants “shall serve the Chief Executive and the Government of the day with total loyalty”. The Code was formulated according to Articles 48, 60 and 99 of the Basic Law. The former two point out that the Chief Executive is the head of the HKSAR Government, such that civil servants have the duty to be loyal to the Chief Executive and the incumbent government. Article 99, on the other hand, involves the overall requirement of the work of the civil service: “Public servants must be dedicated to their duties and be responsible to the Government of the Hong Kong Special Administrative Region.”

Of course, civil servants have the duty to be loyal to the incumbent government, but this is on a different level from taking an oath to “uphold the Basic Law” and “bear allegiance to the HKSAR”. Pledging allegiance to the constitutional order of One Country, Two Systems is of higher importance. The oath or confirmation in writing simply asks civil servants to be dedicated to their duties and to be responsible to the Government of HKSAR instead of being “loyal” to the government.

If a civil servant participates in an “anti-government” assembly which aims at overthrowing the HKSAR Government (as a system), he or she is for sure violating the oath. Yet, if the assembly aims only to oppose a certain government policy and does not involve the One Country, Two Systems principles defined by the Basic Law, participants should not be considered as not upholding the Basic Law. Depending on the circumstances (as discussed below), such conduct may constitute a violation of discipline, but is not a breach of oath.  

(4) Civil servants are responsible for giving advice in the policy formulation process

It is within the civil servants’ (especially senior civil servants’) duty to give politically appointed officials their objective opinions on the feasibility and effects of policies. As the HKSAR Government increases its regulation of civil servants’ political activities, it must reserve sufficient room for internal discussion to allow for the continuous operation of the professional and cooperative relationship between the civil service and the politically appointed officials—one established based on the principle of political neutrality. After decisions have been made, civil servants should not openly express views that are against the decisions. 

(5) What amounts to a breach of discipline?

The existing Code and relevant laws have clear regulatory measures and standards on several political speech and behaviours of civil servants:

• in their official capacity, they shall not engage in parties and political activities. 
• four types of civil servants are prohibited from engaging in political activities at any time. 
• serving civil servants are subject to disciplinary action if convicted of participating in illegal public events.
• lawful strikes conducted according to the Employment Ordinance must comply with legal requirements and procedures and are different from strikes of a political nature.

In the past, some civil servants have lawfully made political statements. There has not been a unanimous opinion within the civil service and among the general public as to whether they deviated from the disciplinary code. To protect the fundamental rights of our civil servants in their capacity as ordinary citizens, the HKSAR Government should unequivocally define:

• what amounts to an expression of opinion in one’s official, instead of personal, capacity;
• whether civil servants could openly support the Government’s policies outside the scope of their work in high profile; and
• how to determine whether a civil servant’s political speech and behaviour online constitute a breach of discipline.

5.1 What amounts to an expression of opinion in one’s official (instead of personal) capacity

Is it true that there should be no limitation on civil servants’ expression of political opinions if such views do not create a direct conflict of interest with the officers’ duties? Indeed, in most situations, civil servants’ opinions may not be directly related to their own duties, but they should also contemplate whether such behaviour will, as perceived by others, embarrass the Government, or whether it would be perceived as detrimental to the civil service’s image of political neutrality. While public perception is an abstract concept, political activities risking illegality may well cause embarrassment to the Government. 

Whether a civil servant has, in the course of voicing his or her demands, violated the principle of political neutrality depends on whether he or she revealed his or her identity as a civil servant or appealed to others in this capacity and whether the platform on which he or she expressed these opinions contained information indicative of his or her identity as a public officer. The following cases merit clearer guidelines and regulation:

• Civil servants should refrain from political activities openly and mainly targeted at civil servants.
• Civil servants should avoid expressing explicit political stances in political activities, such as speeches.
• Civil servants, in their capacity as public officers, should not participate in political activities, for example, calling on civil servants to participate in strikes outside the scope of “employment entitlements” in the name of labour unions or, as a union, openly opposing government policies unrelated to “employment entitlements” or criticize the incumbent government.
• Civil servants should not express political opinions in their capacity as public officers, for instance, attaching their titles to signed articles or speaking on platforms (such as accounts or pages) which include information indicative of their official status (such as workplace pictures) or which are named after “civil servant(s)” and/or civil service titles. 

5.2 Political expressions that should be protected

If a civil servant does not reveal his or her identity as a public officer while openly expressing his or her opinions (such as publishing an article under a pseudonym) and does not violate the aforementioned definition of “upholding the Basic Law” and “bearing allegiance to the HKSAR” but whose identity is later made public or revealed by a third party (such as the media), he or she should only receive verbal advice and should not bear total responsibility. 

5.3 Civil servants must not openly support government policies outside their scope of work in high profile

If a civil servant’s open speech, made in his or her capacity as a public officer, coincides with the Government’s established policies, does this contradict the principle of political neutrality? Section 5.7 of the Civil Service Code states that civil servants “shall support and implement policies and take actions, once decided by the Government of the day, fully and faithfully irrespective of their personal views”. They should assist principal officials in explaining the policies and enlisting the support of the Legislative Council and the public. However, the same section also provides that civil servants should “ensure that their involvement in, or contribution to, any public debate or discussion on public matters is in accordance with the policies and decisions of the Government of the day and is appropriate to the official positions they hold”. 

If the Government has already put forward a clear policy, the civil servants concerned can openly express their opinions using their official titles in the relevant fields, voicing their agreement with the Government's policies. However, if such explicit agreement with government policies is expressed outside the needs arising from work, a civil servant should seek prior permission from his or her senior. Just as civil servants should not openly oppose the Government’s policies, they should as well perform their duty and not attempt to influence the governance of the Government of the day by declaring their stance publicly and in high profile. 

(6) Guidelines for civil servants’ political speech and behaviour online

The Civil Service Code and other relevant regulations have not kept up with the times on their definition of “political activities”. They mainly regulate civil servants’ engagement in election and party activities, and are rather insufficient in guiding civil servants’ conduct online. This is especially important as, on the Internet, the boundary between “public” and “private” is vague, and it is more difficult to eliminate any records left thereon. After consulting relevant laws and guidelines in the UK and the US for civil servants’ behaviour online, we suggest the following: 

• Guidelines regulating civil servants’ political activities should also be made applicable to their conduct on the Internet. Civil servants should avoid substantive or potential conflicts between their behaviour online and their identity as a public officer and not embarrass the Government. 
• Regarding civil servants’ personal social media accounts without any information on their identity as public officers, as long as the opinions expressed in those accounts do not violate the aforementioned definitions of “upholding the Basic Law” and “bearing allegiance to the HKSAR”, these actions should not be considered as a breach of discipline. 
• Civil servants must not reveal on the Internet messages or information obtained while performing their duties or in their capacity as public officers, such as measures or policies not yet announced by the Government.
• Civil servants should not display official logos, badges, photos etc. such that others may mistakenly believe they are representative of the official stance or the stance of a certain government department. 
• When posting workplace-related information online, a civil servant should avoid creating the perception that he or she is violating the principle of neutrality, such as openly criticizing work-related service recipients or project stakeholders.  
• Superiors must not send messages about supporting certain political parties, candidates or political organizations to their subordinates. This is to avoid any influence on their subordinates’ attitude in elections. 
• When particular actions of civil servants involve their capacity as public officers, claiming that their words are mere “personal remarks” does not completely absolve them of their responsibility for the violation of the relevant guidelines on political activities.

(7) Regulation on political donations

The Civil Service Bureau’s current definition of campaign activities does not include political donations. To enhance the completeness of the definition of “political neutrality”, we suggest the HKSAR government, as it reviews the regulations, include “donating to political organizations or conduct fund-raising activities for political organizations, including soliciting, accepting or receiving political donations” in the definition of election campaign activities. Civil servants may attend fund-raising activities of the above organizations or individuals, but must not post, share, follow or reproduce any webpages about fund-raising for political parties, including invitations to fund-raising events. This rule should apply at any time, both during and after work and should be applicable to accounts in pseudonyms.