22 February 2019
With the Basic Law interpretation, the High Court has been preempted and its hands are tied. Photo: Bloomberg
With the Basic Law interpretation, the High Court has been preempted and its hands are tied. Photo: Bloomberg

How Beijing changed Hong Kong laws forever

This morning, we woke up to a different Hong Kong — one that no longer enjoys judicial independence under the rule of law.

Thanks to Beijing’s interpretation of the Basic Law on Monday, Hong Kong’s political landscape has changed forever.

In one fell swoop, Beijing effectively outlawed all separatist parties and introduced a kind of loyalty test for future candidates and holders of public office.

In the case of the Legislative Council, Beijing’s ruling disqualifies anyone merely for not showing enough seriousness and sincerity when reading the oath of office.

Changing the words of the oath is now also a disqualifying act.

More than the fact that it came at the height of controversy over the swearing-in of two separatist lawmakers-elect, the ruling on Article 104 of the mini constitution came at an unfortunate time.

While the Standing Committee of the National People’s Congress, China’s legislature, was deciding on the language of the ruling, Hong Kong’s High Court was deliberating a judicial challenge pertaining to just such an issue.

Now, with the Basic Law interpretation, the High Court has been preempted and its hands are tied.

It’s completely conceivable that the court will defer to the interpretation in order to end the political turmoil once and for all and comply with China’s wish to prevent the situation from creating instability.

That means Sixtus Baggio Leung, Yau Wai-ching and several lawmakers face disqualification either by their pro-independence advocacy or by their behavior at the oath-taking.

They include Edward Yiu Chung-yim and Lau Siu-lai, whose oaths were invalidated for not having shown enough “solemnity” (Lau peppered her oath with long pauses between words.)

Long Hair Leung Kwok Hung brought a yellow umbrella to the swearing-in ceremony in honor of the 2014 democracy protests and he, too, might have violated the “solemnity” requirement.

All other lawmakers could be sued to test their loyalty to China and Hong Kong and their allegiance to the constitution. This comes with the knowledge that the sincerity requirement itself is already a big hurdle for being too subjective.

Chief Executive Leung Chun-ying, who triggered the legal challenge in the High Court and presumably suggested an interpretation of the Basic Law to his bosses in Beijing, was quick to seize the moment, promising to “fully implement” the ruling.

Beijing has now successfully brought together the executive, legislative and judiciary to serve its designs on Hong Kong.

It will be recalled that in 2008, Xi Jinping had told Hong Kong about the “need” for closer cooperation between the three branches of government to better implement “one country, two systems”.    

Eight years later, we have this.

It’s easy to imagine this round going to Leung Chun-ying at a time when he is eagerly awaiting the go-ahead from Beijing to run for a second term.

Many political observers say he has made his case to Beijing that he is the right person to tackle any separatist ideas in Hong Kong.

Surveys show he is second to last among potential candidates, well behind Financial Secretary John Tsang who leads by a mile.

But four months to election day is a long time in politics, especially with political infighting tearing at the seams of the Communist Party leadership.

Observers noted the absence from Monday’s NPC meeting of Rita Fan, Hong Kong’s lone deputy to the standing committee.

They linked it to a power struggle in the party leadership, with a faction opposed to an interpretation of the Basic Law. 

Nonetheless, the immediate outcome has been a situation in which Hong Kong’s uniqueness and competitiveness have again been eroded.

Rule of law has sunk deeper to the level of a Chinese slogan and judicial independence is a thing of the past. 

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EJ Insight writer

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