The Hong Kong government has confirmed that Beijing officials are to discuss handing down an interpretation of Article 104 of the Basic Law at the Standing Committee of the National People’s Congress meeting.
It received the notice on Thursday night that the matter will be added to the agenda, after the hearing of the judicial review relating to lawmakers Baggio Leung Chun-hang and Yau Wai-ching concluded at Hong Kong’s high court.
A spokesperson for the government said the Department of Justice has informed the court of the notice. The Department of Justice informed the court about the information on Friday morning, the spokesman said.
Beijing is seeking to bar the two localist lawmakers from retaking their oaths as lawmakers. The Hong Kong government is also currently seeking an order from the court to bar Yau and Leung from the Legislative Council. The oaths they took during their swearing-in session were deemed invalid in October as they took them while carrying a flag stating “Hong Kong is not China” and pronounced the word China as “Chee-na,” which is considered derogatory.
Article 104 of the Basic Law says that “the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.”
The Legislative Council’s oath controversy arose after Youngspiration lawmakers Yau Wai-ching and Sixtus Leung Chung-hang referred to “China” as “Chee-na” – considered by some to be insulting – at the legislature’s swearing-in session in October.
The duo were asked to retake their oaths. The government subsequently requested an unprecedented judicial review and interim injunction in an effort to block Yau and Leung from being sworn in. The court rejected the injunction request but granted leave for judicial review.
Despite the decision of Legislative Council President Andrew Leung Kwan-yuen to allow Yau and Leung to retake their pledges, they were unable to proceed as pro-Beijing politicians staged a walkout.
A week after the government was granted leave for judicial review against Leung’s decision, the president announced that he will postpone the oath-taking of Yau and Leung until the legal challenge over the matter is concluded.
The government has been criticised for using the court to interfere in the internal affairs of the Legislative Council, and disregarding the principle of separation of powers.
Judicial review is a formal mechanism of evaluating the decision-making process of public bodies. It mainly reviews administrative decisions they make, and looks at whether a law or administrative decision is compatible with the Basic Law, Hong Kong’s mini-constitution.
An example of judicial review of an administrative decision is Choi Hoi-dick v. Secretary for Home Affairs in 2007, when lawmaker Eddie Chu unsuccessfully challenged the legality of the government’s refusal to declare the Queen’s Pier a “monument.”
For a judicial review of the constitutionality of a law, an example would be Leung TC William Roy v. Secretary for Justice in 2006, in which the Court of Appeal held that the law prohibiting consensual male homosexual sex under age 21 was discriminatory based on sexual orientation and hence unconstitutional.
Separation of powers refers to the division of government into distinct branches – the executive, legislature, and judiciary – to prevent any one branch from overstepping their constitutional roles and abusing concentrated power.
The executive is generally referred to as the “government,” which oversees the daily administration of the territory’s bureaucracy. The Legislative Council is the legislature or parliament of Hong Kong, while the judiciary includes all levels of courts.
However, the constitutional powers of the three branches in Hong Kong are not equal. For example, under Article 74 of the Basic Law, lawmakers can only introduce bills relating to government policies with the consent of the chief executive, and cannot introduce bills relating to public expenditure, political structure and the operation of the government. This limits the lawmaking power of the legislature.
That said, the judiciary is generally reluctant to interfere in the internal affairs of the legislature. In Leung Kwok Hung v. President of the Legislative Council in 2007, lawmaker Leung Kwok-hung unsuccessfully challenged the rule that prevents legislators from amending bills that have an impact on public expenditure. Leung also raised the issue of whether the court has jurisdiction over the legislature.
In holding that the court does have jurisdiction over the legislature, the Court of First Instance gave a word of caution that such jurisdiction, “having regard to the sovereignty of LegCo under the Basic Law, should only be exercised in a restrictive manner.”
Possibly. Whether the Court of First Instance rules in favour of the government or not, the parties can appeal to the Court of Appeal or the Court of Final Appeal, Hong Kong’s top appellate court.
In the event that the Court of Final Appeal agrees to hear the appeal, the court may decide to refer the case to China’s top legislative body, the Standing Committee of the National People’s Congress (NPCSC). It has only done it once, in Democratic Republic of the Congo v. FG Hemisphere, a case in 2011 concerning the principles of state immunity.
Article 158 of the Basic Law confers the power of interpreting the territory’s mini-constitution on the NPCSC. In other words, the NPCSC’s interpretations of the Basic Law are final and legally enforceable.
Hong Kong’s judiciary has debated the scope of the NPCSC’s interpretative power. In Ng Ka Ling v. Director of Immigration in 1999, the Court of Final Appeal took a strong stance in defending judicial autonomy. But about a year later, in Lau Kong Yung v. Director of Immigration, the Court held that the NPCSC’s power is “plenary” in that it can interpret all of the provisions of the Basic Law at anytime.
The NPCSC has interpreted the Basic Law on its own initiative once, in a case relating to the election method for choosing the chief executive in 2004.
The Hong Kong government has asked the NPCSC to interpret the Basic Law twice: first in Ng Ka Ling in 1999, when the government disagreed with the Court of Final Appeal’s decision entitling all Chinese citizens with Hong Kong parents to the right of abode. Secondly, in the case of former chief executive Donald Tsang, when he asked the NPCSC in 2005 to interpret the law related to the term of office of chief executives when replacing predecessors who vacated office before their terms expire.
The Court of Final Appeal referred a case on the principles of state immunity to the NPCSC in 2011.
Such interpretations are always controversial due to the public perception that Beijing is undermining Hong Kong’s judicial independence.
The government has argued that the oaths of Youngspiration’s incoming lawmakers Yau Wai-ching and “Baggio” Leung Chung-hang contravened Article 104 of the Basic Law, and the Oaths and Declarations Ordinance (Cap. 11).
Article 104 of the city’s mini-constitution stipulates: “When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.”
Section 21 of the Oaths and Declarations Ordinance lays down the consequence of non-compliance. It says: “Any person who declines or neglects to take an oath duly requested which he is required to take by this Part, shall – (a) if he has already entered on his office, vacate it; and (b) if he has not entered on his office, be disqualified from entering on it.”
In 2012, former lawmaker Raymond Wong Yuk-man replaced words such as “Republic” and “Special Administrative Region” with coughs in his first swearing-in attempt. Wong’s oath was only rejected after former Legislative Council president Jaspser Tsang was elected and revoked his oath.
In his second swearing-in, Wong read the full names of China and Hong Kong at an unusual pace, and shouted “Overthrow the Chinese Communist regime, down with CY Leung” immediately after his pledge.
Despite protests by pro-Beijing politicians, Tsang accepted Wong’s second oath.