Basic Law interpretation: Is this our inescapable destiny?

November 29, 2016 15:46
A young girl waves the Chinese flag during a rally in support of an interpretation of the Hong Kong constitution by China's National People's Congress. Photo: AFP

“Five interpretations in 19 years since the handover, that’s roughly once every four years. Isn’t it proof that Beijing is really self-constrained in this matter?”

Wang Zhenmin, head of the legal affairs division of the Liaison Office, responded with this rhetorical question when asked about the recent interpretation of the Basic Law by the National People’s Congress.

But the crux of the matter, Mr. Wang, is not the number of such interpretations but rather the justifications for these legal moves and the way they were done.

Four of five such interpretations were either initiated by the NPC or the SAR government, in breach of the Basic Law which stipulates in Article 158 that only courts in Hong Kong can, if judges all hold that it’s genuinely warranted, seek through the Court of Final Appeal an interpretation from the NPC Standing Committee.

With such gratuitous imperial decrees wrapped in a fancy legal package, the damage is done: Hong Kong’s judicial independence and power of final adjudication have taken yet another beating.

1980s interpretation rows

Now, it behooves me to point out that, as a reporter who covered the entire drafting process of the Basic Law back in the 1980s, those Hong Kong representatives in the drafting committee then had all foreseen the polemics against interpretations and all the repercussions which we are all seeing today.

They all sought vigorously, but to no avail, that the right to interpret the Basic Law, along with the power of final adjudication, should be vested in the local judiciary.

Their mainland counterparts strongly opposed it. The question of which body shall and can interpret the law had been a sticking point throughout the entire drafting process until the document’s formal promulgation in April 1990.

The reason for Beijing’s steadfastness was quite straightforward: the right to interpret the mini constitution of the HKSAR matters a great deal to its sovereignty, and, since it’s a national law, the Chinese legislature must be able to override Hong Kong courts in the political hierarchy.

Hong Kong legal experts tried to take the issue with their mainland colleagues: the absence of de jure right to interpret the Basic Law meant a void in the power of final adjudication vested in the Court of Final Appeal, and in turn it would debase the very foundation of “one country, two systems”.

As they argued, if Hong Kong courts had to seek interpretations from the NPC when hearing politically thorny cases, then it’s tantamount to leaving the case to the NPC to decide, and in that scenario, the power of final adjudication would be just empty talk.

This is exactly what we have seen in the latest NPC interpretation earlier this month, which effectively preempted the High Court as the latter was yet to hand down its ruling on a judicial review case concerning the validity of two separatists’ oaths for assuming their Legco posts.

The NPC has usurped the role of the Hong Kong judiciary to decide the fate of the two legislators-elect.

Simon Li Fook-sean, one of the Hong Kong's most senior Chinese judges, once gave mainland cadres some blunt admonitions in the 1980s: “Retaining the interpretation power is like giving Hong Kong 'one country, two systems' with one hand and taking away half of its promised autonomy with the other… Beijing should not go back on its word, as otherwise it’s a violation of the spirit of the Sino-British Joint Declaration.”

Two ideologies for interpretations

Hong Kong members also brooded over the apparent incompatibility of the two legal systems when one system initiates an interpretation for another.

In Hong Kong’s common law concepts, an interpretation of law must be a case-based one, that is, a court can interpret specific clauses, with deliberation confined to the details of each clause, only when the court is adjudicating a specific case.

In other words, no abstract interpretations to alter or redefine the principle of legislative intent shall be made.

Comparatively, China adopts the so-called “legislative interpretation” in which the NPC can further clarify or modify a particular clause or insert any supplement through its power of interpretation as it sees fit, with or without any specific cases involved.

We all know that the NPC is but a cosmetic legislature under the communist regime, and thus such “legislative interpretation” means a tried and true tool for Beijing to rein in Hong Kong’s judiciary.

Then we know the independence of the local judiciary is in truth without any legal or institutional guarantee but only exists at Beijing’s own pleasure.

When it became clear that Beijing wouldn’t budge over the issue, Hong Kong members of the drafting committee then sought to set up a “constitutional court”, or an interpretation committee comprising an equal number of Hong Kong and mainland legal professionals.

They insisted that Hong Kong members of the committee must be nominated and selected through fair and open election to make sure they would convey the genuine voices of Hong Kong society.

But even that proposal was also shot down in toto.

No one can blame our local representatives for failing to strive for our rights, as quite the opposite, they made every endeavor but Beijing remained adamant throughout.

They had all anticipated the post-1997 crises arising from Beijing’s unsolicited interpretations, but they could do little to change Hong Kong's fate 

Neither can we do much today, almost two decades later, to reverse the eventuality.

Is this our inescapable destiny?

This article appeared in the Hong Kong Economic Journal’s online forum on Nov. 17.

Translation by Frank Chen

[Chinese version 中文版]

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Yau Wai-ching (right) stands in front of riot police outside the Liaison Office after the Chinese legislature effectively barred her from taking her Legco seat. Photo: AFP
Lawyers and law students pause for three minutes of silence after a march in protest at Beijing's interpretation of the Basic Law. Photo: AFP

Senior journalist with The Straits Times and political commentator