On November 7, China’s top legislature, the Standing Committee of the National People’s Congress (NPCSC), voted on and passed The NPCSC’s interpretation of the Basic Law Article 104 of the Hong Kong Special Administrative Region with unanimous support.
The Progressive Lawyers Group says the ruling has gone well beyond an interpretation of the Basic Law as it sought to prescribe matters within the remit of Hong Kong domestic law, a power not accorded to Beijing under the existing constitutional framework. It has compiled a list of FAQs about the relevant legal issues.
Article 67(4) of the Chinese Constitution and Article 158(1) of Hong Kong’s Basic Law gives the NPCSC a freestanding and plenary power of interpretation of the Basic Law. This was also confirmed in the Hong Kong Court of Final Appeal (CFA) case of Lau Kong Yung v Director of Immigration in 1999.
However, this power should be sparingly used. Both the Hong Kong Bar Association and the Law Society of Hong Kong have in the past consistently called on the NPCSC to use this power with great restraint, as its use would give rise to concerns about the rule of law and judicial independence.
The NPCSC’s power only extends to interpreting provisions of the Basic Law itself. This power does not extend to the interpretation of local Hong Kong statutes.
Professor Albert Chen, a Basic Law Committee member, previously said that if the NPCSC acts in a way that falls outside powers given to it under the Basic Law, “Hong Kong courts can legitimately claim that they have no legal force in Hong Kong – even if they purport to apply to Hong Kong by their express terms of by necessary implication.”
Historically, there have been four NPCSC interpretations:
(1) The interpretation issued by the NPCSC in June 1999 on Articles 22(4) and 24(2)(3) of the Basic Law, which effectively reversed the CFA’s judgment in Ng Ka Ling v Director of Immigration. This interpretation was issued at the request of the Chief Executive (after the CFA ruled against the Government).
(2) In April 2004, the NPCSC issued an interpretation on Article 7 of Annex I and Article III of Annex II of the Basic Law, in essence adding two extra steps to the procedure for electoral reform. This interpretation was issued on the NPCSC’s own initiative.
(3) In April 2005, the NPCSC issued a third interpretation, on Article 53(2) of the Basic Law. This was issued at the request of the Chief Executive, and dealt with the term of a new Chief Executive elected to replace an outgoing Chief Executive whose term ended prematurely.
(4) In August 2011, the NPCSC issued an interpretation on Articles 13(1) and 19 of the Basic Law, pursuant to a request of the CFA. The interpretation was issued after the CFA handed down its provisional judgment in Democratic Republic of the Congo v FG Hemisphere Associates LLC in 2011.
The Interpretation was “freestanding” – i.e. it was issued by the NPCSC on its own initiative and not in response to a request by the Hong Kong government or the Hong Kong courts.
The latest interpretation by the NPCSC was issued on 7 November 2016 and concerns Article 104 of the Basic Law.
Article 104 of the Basic Law provides that: “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.”
The NPCSC essentially stated that:
(1) A person may not take office as a relevant officer set out in Article 104 or receive remunerations for that office unless and until he/she has validly taken oath in accordance with the law.
(2) A person who takes an oath required under Article 104 of the Basic Law must swear to uphold the Basic Law and allegiance to the Hong Kong SAR with “sincerity”, “solemnity” and must utter those words “accurately,” “completely” and with “solemnity.”
(3) If a person declines to take the oath, that person is disqualified to take office. If a person deliberately utters words which are different from the statutory prescribed form of the oath, or takes the oath in a manner which is “insincere” or “not solemn,” that person is deemed to have declined to take their oath and disqualified from taking office as a result.
(4) The officer administering the oath shall determine the validity of the oath in accordance with the Basic Law and the NPCSC interpretation. The administering officer shall declare any oath taken by a person which is inconsistent with the Basic Law and the NPCSC interpretation invalid and may not arrange for the retaking of the oath by that person.
(5) A person who takes the oath without believing in it or acts in contravention to the oath shall bear legal consequences.
Article 104 provides that the taking of oath “shall be in accordance with law,” which means the details and the mode of the taking of oath shall be regulated by local legislations – in this case, the Oaths and Declarations Ordinance (OADO).
Section 21 of the OADO provides for the disqualification of a person who declines or neglects to take the oath (or the vacation of that office if that person has already entered office). Section 19 of the OADO provides that a LegCo member shall take oath as soon as possible after commencement of his term of office.
The NPCSC interpretation amounts to an attempt to interpret, amend or rewrite the OADO in the guise of an interpretation of the Basic Law. There is nothing in Article 104 that gives room for the NPCSC to prescribe rules for oath taking in Hong Kong. Such prescriptions are matters of Hong Kong domestic law under the OADO. The prescriptions in this NPCSC interpretation are not found in the OADO, and are thus additional to or otherwise an attempt to “interpret” the OADO.
Under the Basic Law, Hong Kong has a common law system and Hong Kong courts are empowered to interpret local legislation and clarify ambiguities of such legislations should there be any. To the extent the NPCSC interprets (or reinvents) local legislation, the NPCSC interpretation is acting outside of its powers under the Basic Law.
Part of the relief sought in the judicial review application is “A declaration that the President [of the Legislative Council] has no power to re-administer or allow for re-administration.” The NPCSC interpretation has effectively sought to torpedo the judicial review proceedings in the guise of interpreting the Basic Law.
We consider that strictly as a matter of law, the parts of the NPCSC interpretation which go beyond an interpretation of the Basic Law (which is virtually all of it) are of no legal effect and not binding legally. However, the reality is that there is no practical mechanism to hold the NPCSC to account. It is therefore difficult to predict how the NPCSC interpretation may affect pending Court proceedings or actions taken by other parties as a result of the Court’s ruling(s).
The NPCSC interpretation causes irreparable harm to the high degree of autonomy and judicial independence that was guaranteed to Hong Kong and has been the cornerstone of its prosperity for the following reasons:
(1) The matter is one which can be resolved by Hong Kong Courts by interpreting Article 104 of the Basic Law and by applying local legislations including the Oaths Ordinance. Article 104 specifically states that the oath ought to be taken “in accordance with law”, which signifies that the matters in connection with the mode and manner in which the oath is taken should be governed by local legislations.
(2) The NPCSC interpretation was issued at a time when the hearing of the judicial review application has already taken place and the judgment is pending. It is clearly designed to interfere with the court’s decision.
(3) The NPCSC interpretation was issued of the NPCSC’s own volition, not at the invitation of the CFA or the Hong Kong government.
(4) It has the unprecedented effect of rewriting/reinventing local legislations and intrudes upon the legislative powers of the Legislative Council of Hong Kong.
(5) It effectively overruled the decision of the President of LegCo to allow the retaking of oath by Leung and Yau and interferes with the internal affairs of the Legislative Council.
The NPCSC’s exercise of power effectively interferes with the pending judicial process and the autonomous exercise of Hong Kong legislative discretion. The NPCSC Interpretation has also gone beyond interpreting Article 104 of the Basic Law and has proceeded to make legislative prescriptions which are within the remit of local legislation. This is a clear flouting of the rule of law, which is the cornerstone of the capitalist system and the prosperity of Hong Kong.
For the NPCSC interpretation to take place while judgment is still pending does more harm to the rule of law and the judicial independence. It sends a signal that those in power are only willing to accept one result (i.e. one in its favour) in any legal dispute, and that the Courts must yield to that even if they are still in the process of considering the issues. This is the hallmark of a legal system that disrespects the rule of law.
Hong Kong laws can and should be clarified by Hong Kong Courts, and should be made by the Hong Kong legislature. Even if the NPCSC Interpretation does “clarify” any uncertainties, the costs of such clarification is the erosion of our rule of law and the autonomy of Hong Kong.
We do not support the use of inappropriate language in formal political discourse, and we accept that the Basic Law makes it clear that Hong Kong is an inalienable part of China.
However, the Basic Law also sets out fundamental rights such as the right to stand for election (Article 26) and freedom of expression (Article 27). The NPCSC Interpretation undermines these fundamental rights, the judicial independence and the autonomy of Hong Kong. It bodes ill for the future of fundamental human and commercial rights guaranteed by the Basic Law if the NPCSC “interprets” the Basic Law for political ends whenever it sees fit.