On November 7, the National People’s Congress Standing Committee (NPCSC) announced its interpretation of Article 104 of Hong Kong’s Basic Law, declaring that lawmakers who failed to take their oaths properly last month should not be allowed to retake the pledges and assume office.
The interpretation calls into question whether several other localist lawmakers who failed to get the oaths right in the first take and then retook them should also be disqualified from the Legislative Council.
While the pro-Beijing camp in Hong Kong has welcomed the NPCSC interpretation, the mainland’s move has provoked a backlash from both the legal profession as well the general public here.
In this article I am going to discuss the NPCSC interpretation, and explain why it was a wrong decision at the wrong time.
Under Article 158 of the Basic Law and Article 67 of the constitution of the People’s Republic of China, the ultimate power to interpret the Basic Law rests with the NPCSC, which can exercise such power whenever it finds necessary.
However, since under Article 19 of the Basic Law, “the Hong Kong Special Administrative Region shall be vested with independent judicial power, including that of final adjudication”, the NPCSC is expected to exercise restraint when it comes to interpreting the Basic Law so as not to undermine the judicial independence and the rule of law in Hong Kong.
Also, whenever Beijing decides to exercise its power of interpretation, it should convince the people of Hong Kong that such decision is made after thorough consideration, and is appropriate, timely and legally justified.
Unfortunately, it appears the recent interpretation of Article 104 was neither carried out after thorough consideration, nor was it appropriate or had legal justification.
As the NPCSC has passed its resolution abruptly before the Hong Kong High Court could deliver a verdict on a judicial review application filed by the government over the oath-taking of two young lawmakers, it suggests that it was a hasty decision made by Beijing to pre-empt the court’s ruling.
Another indication of the hastiness of the decision is the fact that the interpretation of Article 104 was not on the initial agenda of the 24th NPCSC meeting. In fact the NPCSC secretariat had to improvise and squeeze the item into the agenda last weekend without giving any prior notice to members.
According to media reports, even Qiao Xiaoyang (喬曉陽), deputy secretary general of the NPCSC, was at a complete loss when asked by Hong Kong journalists last Friday whether the NPCSC was going to discuss the interpretation of Article 104 of the Basic Law.
It indicates that the decision was been made in such a haste that standard procedure was not observed, let alone any thorough consideration.
Nor was the NPCSC interpretation transparent or thoroughly discussed by the Basic Law Commission, the official advisory body whom the NPCSC is supposed to consult every time it decides to interpret Hong Kong’s mini-constitution.
The fact that the commission was only given a day or so to discuss the matter suggests that the entire consultation was nothing more than a formality.
To make things worse, unlike its previous interpretation of the Basic Law, the NPCSC this time not only “explained” in detail the clauses of Article 104, but also added several extra provisions to the existing law, such as barring lawmakers from retaking their oaths, which amounts to unilaterally amending Article 104.
By doing so the NPCSC has obviously overstepped its authority of interpreting the Basic Law, calling into question the constitutionality of this latest interpretation.
In the meantime, the ruling that those who failed to take their oaths properly should be automatically disqualified from office also contradicts Article 79 of the Basic Law, under which a two-thirds majority vote of Legco is required to remove a lawmaker from office.
Such discrepancy could pave the way for further constitutional disputes in the future.
This article appeared in the Hong Kong Economic Journal on Nov. 10.
Translation by Alan Lee
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