14 November 2018
A file picture shows lawyers in Hong Kong staging a silent protest after China's parliament passed an interpretation of the city's mini-constitution. Photo: Reuters
A file picture shows lawyers in Hong Kong staging a silent protest after China's parliament passed an interpretation of the city's mini-constitution. Photo: Reuters

Some advice for the pro-establishment camp

At a press conference following the interpretation of Article 104 of Hong Kong’s mini-constitution, Li Fei, deputy secretary general of the National People’s Congress Standing Committee (NPCSC), lashed out at the legal community in Hong Kong, saying some people had grossly misrepresented and distorted the Basic Law over the years to serve some political purposes.

He also stressed that Beijing’s recent interpretation of the law was both timely and necessary, arguing that it helped set the record straight on the Basic Law, which will prove beneficial to Hong Kong.

While I don’t think our Beijing bosses would care about the feelings and concerns of the people of Hong Kong in relation to the abrupt interpretation of Article 104, I do sincerely hope that they would at least spend a little time going through the statement issued by the Hong Kong Bar Association on this matter, because I believe it has made some very good and insightful points.

For example, in its statement the Bar Association deeply regrets the NPCSC’s decision to pre-empt the High Court and interpret Article 104 of the Basic Law when a judicial review application filed by the government over the oath-taking of the Youngspiration duo was still pending.

Such a move, it states, would inevitably undermine Hong Kong’s international image as a judicially independent city and shake public confidence in our rule of law.

I think the Bar Association’s arguments against the NPCSC interpretation are both moderate and sensible, and hit the nail on the head.

In the meantime, it is most unfortunate that the pro-establishment camp has milked the oath-taking saga for all it is worth by stirring up a patriotic frenzy among society and turning public opinion against the pro-democracy camp at the expense of our rule of law and due process.

According to the explanations given by Li Fei and Professor Albert Chen Hung-yee from the law faculty of the Hong Kong University, the power to decide whether the NPCSC interpretation is retrospective and applies to other lawmakers as well fully rests with the local courts in Hong Kong.

As such, I believe it is logical to infer that Beijing has no plan or intention whatsoever to seize the opportunity to eliminate other pro-democracy lawmakers who either failed to nail their oaths in one take or failed to deliver the oaths “accurately”.

However, it appears Chief Executive Leung Chun-ying may be thinking otherwise, as he has remained pretty equivocal so far over whether the government would file judicial review applications against more lawmakers and seek their removal as well. It is likely that Leung might be thinking about challenging their legitimacy as lawmakers in court soon.

I have also noticed that some pro-establishment lawmakers have urged Legco president Andrew Leung Kwan-yuen to invoke the NPCSC interpretation to disqualify some pro-democracy lawmakers, thereby quashing the opposition in Legco once and for all.

If that worst-case scenario happens, the pro-establishment camp would be able to secure not only a two-thirds majority in Legco but also a clear majority in both the functional and geographical constituencies. That would enable them to amend the Rules of Procedure to ban filibusters and turn the legislature into an effective rubber stamp.

However, I think it would be completely naive and ignorant for the government and the pro-establishment camp to truly believe that they could use the NPCSC interpretation as a weapon to remove all the trouble-making pro-democracy lawmakers from office in one go, as such a bad idea is very likely to backfire.

As the lawmakers have been rightfully elected with a clear mandate by hundreds of thousands of voters in our city, disqualifying them solely based on the NPCSC interpretation would not only trigger a huge constitutional crisis, it may also provoke a ferocious backlash, or even a riot, among the general public.

Rather than trying to inflict more damage on the pro-democracy camp, I believe what the pro-establishment camp should do right now is to extend the olive branch to the opposition and seek reconciliation, so as to restore harmony to the legislature and also the society as a whole.

This article appeared in the Hong Kong Economic Journal on Nov. 16

Translation by Alan Lee

[Chinese version 中文版]

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Former Secretary for the Civil Service of the Hong Kong Government

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