NPC ruling deals heavy blow to Hong Kong judicial independence

November 07, 2016 09:57
The ruling by the  National People’s Congress reflects Beijing’s suspicion of the Hong Kong judiciary. Photo:

On Monday, the Standing Committee of the National People’s Congress (NPC) will announce that Sixtus Baggio Leung and Yau Wai-ching are barred from taking their seats in the Legislative Council because of their support for independence.

This decision will overrule whatever decision is made by the High Court in the very same case it is now considering; the court is obliged to follow the NPC ruling.

The NPC is making the interpretation on its own; neither the Hong Kong government nor its courts requested it, as in three of the four previous interpretations since the handover in 1997.

The ruling deals a severe blow to the independence of the SAR judiciary since it is designed to pre-empt the decision of the justices.

“The NPC could not afford to wait,” said an editor at a pro-Beijing newspaper.

“If the court ruled against the government and then the NPC made the ruling, the blow to the HK legal system would be even more serious. It is better that it make the ruling first. The HK High Court is obliged to follow it.”

The interpretation will deal with Article 104 of the Basic Law that covers the oath taken by legislators.

Beijing’s rationale has been laid out in the official media during the past week. On Friday, the Global Times, a nationalist paper under the People’s Daily, explained the government’s thinking.

It said that the behavior of Leung and Yau, their insults of Chinese and refusal to accept the wording of the Legco oath, had left the NPC with no alternative but to intervene.

“The trouble in Hong Kong has reached such a point. All the evils have been created by the opposition parties. The center has been pushed to the brink and has no way out. It has to make the interpretation.

“This concerns a matter of national sovereignty and national security. No government could look on with its arms folded,” it said.

It added that the majority of Hong Kong people wanted the two to be barred and that it was essential to reduce the space of the "independence" faction which had been growing in strength in recent years.

For Beijing, the straw that broke the camel’s back was the oath-taking ceremony by the two young legislators – their use of the word "‘Zhina" (支那), insulting China and proclaiming that Hong Kong was not part of it. It believes that, if the two were admitted, they would prevent the normal working of Legco.

And, worse, they feared that the two would attract an increasing number of votes for independence, so that their group in Legco would grow.

Another factor in the NPC’s mind is the fact that the pro-independence Democratic Progressive Party is in power in Taiwan.

President Xi Jinping said last week that, if Taiwan became independent, it would mean the end of the Communist Party in the mainland. He wants to oversee the reunification of Taiwan during his term in office.

Since he became party chief in November 2012, Xi has reduced the space for judicial independence and promoted a nationalist, xenophobic ideology which sees foreign threats to China.

Independence for Hong Kong backed by the US and other countries is one such threat, real or imaginary.

NPC delegates see Leung and Yau like those in Tibet and Xinjiang who want an independent state.

The ruling also reflects Beijing’s suspicion of the Hong Kong judiciary. In the mainland, the justice system is an arm of the Communist Party. Even lawyers who attempt to defend people the police consider guilty are detained and imprisoned

The Hong Kong Bar Association's Winnie Tam said that the timing of the NPC was “unfortunate”.

“Because the judicial process has already started, it [the interpretation] would leave an impression to Hong Kongers and the international community that the central government does not trust the Hong Kong judicial system to solve the problem. It would inevitably hit the city’s rule of law,” she said.

Dennis Kwok, the Legco member for the legal sector, said that the decision would deal a huge blow to rule of law in the city. Lawyers plan a protest march on Tuesday.

The issue is not so much the content of the interpretation – most Hong Kong people support a ban on the two young people entering Legco.

It is on the procedural issue – Beijing has no confidence in Hong Kong courts to reach the decision it wants; so it is forcing a judgment that slaps the courts in the face, rendering their deliberations a waste of time.

Will there be many more to follow?

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A Hong Kong-based writer, teacher and speaker.