16 November 2018
Observers say the unsolicited interpretation handed down by the National People’s Congress is Beijing's blatant bid to bar separatists like Yau Wai-ching from taking office. Photos: Bloomberg
Observers say the unsolicited interpretation handed down by the National People’s Congress is Beijing's blatant bid to bar separatists like Yau Wai-ching from taking office. Photos: Bloomberg

Imperial decrees: Beijing negates rule of law in the name of law

Most people may find legal documents complicated and difficult to comprehend.

Thus, when there is a gap in our understanding, such as the intent of a particular clause, we tend to fill it with something that is meant to clarify but may ultimately run counter to the rule of law.

In the oath-taking controversy at the Legislative Council, many felt that the separatist duo Sixtus “Baggio” Leung Chung-hang and Yau Wai-ching had uttered disdainful words, humiliating China in a ritual meant to be ceremonial, and so they must face the consequences.

For those who agree with this line of thinking, an interpretation of the Basic Law by the National People’s Congress this Monday, which paved the way for the disqualification of the Youngspiration pair, has got the job done.

With Beijing’s propaganda operatives losing no time in stoking public indignation, few have given any thought to one simple matter: whether the interpretation itself is lawful and if there is any breach of procedural justice.

Let’s go back to the fundamentals.

The Basic Law sets out in Article 158 that the NPC has the right to interpret the constitutional document, which we already know, but, more importantly, the clause unequivocally stipulates the procedure when such an interpretation is genuinely warranted:

“The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.

“…if the courts of the HKSAR need to interpret the provisions of this Law concerning affairs which are the responsibility of the central government or the relationship between the central authorities and the region… the courts shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the NPC Standing Committee through the Court of Final Appeal.

“… the courts shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected.”

The NPC in Beijing has no legal basis to preempt Hong Kong courts with an unsolicited interpretation of the Basic Law, since the law stipulates that only Hong Kong courts can request such an interpretation and the Chinese legislature has no role or power – none whatsoever – to usurp the role and autonomy of the territory’s courts in this aspect and initiate the interpretation process.

It’s crystal clear that the legislative intent of Article 158 is to accord the Court of Final Appeal the discretion over the matter, and a request of interpretation must be made solely on the court’s own motion.

It’s ironic to see Beijing wrapping its intervention in a fancy legal package in the name of defending the territory’s rule of law, but a closer look will show that such a ruling is hardly unassailable.

Beijing officials including NPC chairman Zhang Dejiang – the third-ranking official in the Communist Party hierarchy who reportedly masterminded the entire act – gave a loud denial to allegations that the interpretation, the fifth one since the 1997 handover, had once again impaired Hong Kong’s legal establishment.

The outcry from local judges and legal professionals suggests just the opposite: Beijing’s move marks the beginning of the end of Hong Kong as a separate jurisdiction.

It would be naïve to assume that the city’s judiciary is still independent and intact, when Beijing can, via the NPC’s rubber-stamping, lord it over local courts and rescind verdicts that it dislikes.

One such interpretation is already too many, let alone five altogether since 1997. The damage is done.

Not the first time

Perhaps Beijing should thank Hong Kong’s first chief executive, Tung Chee-hwa, for finding a “tried and true” way to bypass Hong Kong courts to twist the Basic Law.

In May 1999, the Tung administration filed a report to the State Council seeking an NPC interpretation of the Basic Law, after the Court of Final Appeal ruled that a person born to a parent who is a permanent resident of the territory shall have the right of abode.

Amid fierce polemics concerning Tung’s justification to do so, the NPC singlehandedly overthrew the CFA ruling in its first interpretation of the Basic Law one month later.

All of the five CFA judges, led by Justice Kemal Bokhary, once considered resigning en masse in protest, according to US Consulate memos released by WikiLeaks.

With that precedent, Beijing began to feel less bound by the provisions of the Basic Law.

In March 2004 it circumvented Hong Kong courts again with a gratuitous interpretation about how the territory should select its chief executive and legislators as well as a revision of procedures for amending election methods.

The action effectively snatched from Legco the power of initiating such amendments.

The NPC subsequently ruled out universal suffrage for the 2007 CE election, sparking massive dissent in the territory.

The third interpretation, which came in April 2005, was not sought by the judiciary either.

Donald Tsang Yam-kuen turned to the State Council and the NPC after Tung’s resignation earlier that year triggered a controversy as to whether he should serve the remainder of Tung’s term or start a new five-year term after he won the CE by-election.

The fourth interpretation is so far the only one that went through a due process.

In June 2011 the CFA requested the NPC to clarify relevant Basic Law clauses when adjudicating a case entailing the nature and scope of state immunity in Hong Kong.

Still, it was reported that two of the five CFA judges, Justice Bokhary and Justice John Barry Mortimer, strongly opposed such a move.

In the latest case, before Beijing laid down its imperial decree, party mouthpiece People’s Daily had already said it all in its overseas edition on Nov. 3: Everyone will be happy if the SAR government wins the case to bar the two traitors from taking office, but if the court rules in favor of Sixtus Leung and Yau Wai-ching, then the NPC must step in to set things aright.

Four days later Beijing decided not to wait for the ruling of the High Court, where an application for a judicial review is pending, and proceeded with another interpretation of the Basic Law, which few, even those within the pro-Beijing camp, expected from the outset.

China’s official Xinhua news agency said the interpretation, passed unanimously by all NPC deputies, “reflects the common will of all Chinese, including Hong Kong people, against Hong Kong separatism”.

– Contact us at [email protected]

Read more:

Let’s call a rubber stamp a rubber stamp

Six lawmakers may face disqualification after Beijing move


Baggio Leung takes his oath of office wearing a banner that reads "Hong Kong is not China". His oath, along with that of fellow Youngspiration leader Yau Wai-ching, was declared invalid. Photo: Reuters

A demonstrator comes well-prepared for any confrontation with the police during a rally near the Liaison Office following Beijing’s decision to issue an interpretation of the Basic Law. Photo: Bloomberg

Police officers stand guard as demonstrators occupy an intersection during a protest near the Liaison Office. Photo: Bloomberg

EJ Insight writer

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