The move by the National People’s Congress Standing Committee (NPCSC) to issue an interpretation of Article 104 of the Basic Law, which was prompted by the recent oath-taking saga in the Legislative Council, may not only result in the disqualification of more pro-democracy lawmakers but also raise a fundamental question: Should courts in Hong Kong still abide by the NPCSC interpretation if it has deviated from the original text of the Basic Law?
Under the new NPCSC interpretation, public office holders in Hong Kong must pledge loyalty and allegiance to the People’s Republic of China “and its” Hong Kong Special Administrative Region.
However, according to the original clause of Article 104, civil servants and public office holders in Hong Kong must take an oath to pledge allegiance to the Basic Law and the HKSAR. It doesn’t require them to pledge loyalty to the People’s Republic of China as well.
As Martin Lee, the founding chairman of the Democratic Party and a member of the Basic Law Drafting Committee back in the 1980s, has pointed out, what the NPCSC did was elaborate on Article 104 of the Basic Law by attaching new provisions to it, which amounts to amending the Basic Law, and which also calls into question whether the NPCSC has done it by the book this time.
Since the NPCSC could have overstepped its constitutional power and amended the Basic Law unilaterally, should courts in Hong Kong still abide by it despite the fact that the interpretation could prove to be unconstitutional?
According to a 1999 ruling of the Court of Final Appeal over whether undocumented mainland children born in Hong Kong should be entitled to the right of abode, courts in Hong Kong should exercise discretion when they find that the NPCSC has overstepped its constitutional authority when interpreting the Basic Law.
Perhaps it would put our courts’ determination to uphold our judicial independence to the ultimate test if some members of the public also cast doubts on the constitutionality of the recent NPCSC interpretation and take it to court.
Intriguingly, however, the senior barrister who represented the government in the 1999 case, and who agreed that Hong Kong courts should exercise discretion when they doubted the constitutionality of any NPCSC interpretation, happens to be Geoffrey Ma, who is now the incumbent chief justice of the Court of Final Appeal.
The question is, will he still stand by what he said back in 1999 when the constitutionality of the recent NPCSC interpretation is really taken to court?
This article appeared in the Hong Kong Economic Journal on Dec. 22.
Translation by Alan Lee
[Chinese version 中文版]
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