Date
4 December 2016
Lawyers in Hong Kong stage a silent protest against Beijing's perceived undermining of Hong Kong's legal independence. Photo: HKEJ
Lawyers in Hong Kong stage a silent protest against Beijing's perceived undermining of Hong Kong's legal independence. Photo: HKEJ

Beijing’s Basic Law interpretation: The devil is in the detail

The abrupt interpretation of the Basic Law by the Chinese National People’s Congress is a bellicose reminder from Beijing as to who is the real boss of Hong Kong.

The interpretation last Monday, the fifth such move since the 1997 handover, comes with a few insertions that aim to alter the legislative intent of Hong Kong’s mini constitution, reining in the de facto political carte blanche meant for the special administrative region.

“When assuming office, … principal officials and members of the Legislative Council … must swear to uphold the Basic Law and swear allegiance to the Hong Kong Special Administrative Region (HKSAR),” reads Article 104 of the Basic Law.

However, in the NPC’s interpretation of the article, some words have been inserted to one key paragraph:

“The taking of the oath stipulated by Article 104 is a legal pledge (of allegiance) made by the public officers to the People’s Republic of China (PRC) and its HKSAR, and is legally binding.”

“People’s Republic of China” has been added, together with the word “its”, a determiner modifying “HKSAR” by attributing possession, laying bare the tenet of the interpretation: other than pledging allegiance to the HKSAR, as already set out in the Basic Law, the territory’s public officers now, first and foremost, must bear allegiance to the PRC as an absolute prerequisite for holding office.

‘Dual allegiance’

I’m not making a linguistic discussion here to quibble over some trivial details.

As a journalist, I witnessed and covered the entire drafting process of the Basic Law back in the 1980s, and I can affirm that the Basic Law never sets out that, other than the HKSAR, officers, including legislators, should swear allegiance to the PRC as well.

Such “dual allegiance” was never meant in the first place.

Some mainland members of the Basic Law drafting committee did, indeed, argue back then that HKSAR officers and lawmakers must declare allegiance to the PRC and central government. Still, “double allegiance” was not enshrined in the finalized version, and Beijing gazetted the mini constitution in April 1990.

I was later told by a senior mainland official that the consideration was quite simple and realistic. As China’s brutal crackdown on student protesters in Tiananmen Square in 1989 had prompted more than one million Hongkongers to take to the streets in the territory, the top leadership in Beijing realized that there was no way to impose such a political requirement on a Hong Kong quivering with shock and indignation.

The Basic Law drafting process was a meticulous one, with virtually every article, word or even punctuation mark carefully weighed and debated. Thus, the decision not to require public officers to pledge allegiance to the mainland was never a slapdash one.

As all drafters would agree back then, the document’s underlying principle was to shield Hong Kong from the mainland, with stipulations that sought to preserve and guarantee the territory’s own systems and liberty.

Senior party cadres were pragmatic enough not to bother too much with political allegiance. Now, it’s truly unfortunate that decades later, the current leaders have taken a big step backward with a rather jingoistic ideology.

Li Fei (李飛), chairman of the NPC’s Basic Law Committee, remarked sternly at a news conference this month that “bearing allegiance to the HKSAR only amounts to turning the territory into a separate political entity … all legislators must take oath to pledge their loyalty to the nation, and there are no ifs or buts”.

Li’s words have negated the very spirit of the Basic Law. What he said marks an outright violation of the mini-constitution.

As Beijing goes back on its promise, this will only fuel Hongkongers’ sense of grievance.

Repercussions

We first saw Beijing’s distortion in the controversial 2014 white paper on “one country, two systems” which single-handedly made patriotism, or rather, toeing the party’s line, a must for all “administrators” of the territory, including all judges. Now we are seeing the absurd “dual allegiance” requirement. Nothing surprising.

We will soon feel all the repercussions. Here are just a few:

First, since Beijing has unequivocally asserted that “one country” is the salient point that must override and govern Hong Kong’s own system, does it mean that Hongkongers, in particular officers and lawmakers, now have some extra obligations, like advocating socialism and the rule of the Chinese Communist Party?

Such worries are valid since pledging allegiance to the PRC means upholding the Chinese constitution, which stipulates in Article One that China is a “socialist state” and “disruption of the socialist system by any organization or individual is prohibited”.

Now that “dual allegiance” is in place for Hong Kong, will those who refuse to submit themselves to Beijing be banned from standing for public posts or dragged down from office?

Second, will lawmakers who express dissident views, like “politically incorrect” slogans calling for the toppling of the Communist Party or one-party dictatorship, be disqualified since the words or deeds violate the oath of allegiance to the PRC?

This article appeared in the Hong Kong Economic Journal’s online forum on Nov. 10

Translation by Frank Chen with additional reporting

[Chinese version 中文版]

– Contact us at [email protected]

RC

Read more:

Mr. President, your honour, may I go out, please?

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

Li Fei, chairman of the NPC’s Basic Law Committee, said in Beijing recently that allegiance to the nation is now a must for all Hong Kong officials. Photo: AFP


Senior journalist with The Straits Times and political commentator

EJI Weekly Newsletter