On November 4, 2016, the chairman of the National People’s Congress Standing Committee (NPCSC), Zhang Dejiang,announced that the committee will issue an interpretation of the Basic Law, Hong Kong’s functional constitution. The Basic Law sets parameters for NPCSC interpretations of its provisions. This interpretation, which has not been requested by Hong Kong authorities, is expected to dictate the ruling of Hong Kong courts in an ongoing case involving two pro-independence members of the Legislative Council – possibly disqualifying them from office.
“Beijing’s intervention in this case may cause long-term damage to Hong Kong’s judicial independence,” said Sophie Richardson, China director at Human Rights Watch. “A highly politicized ‘interpretation’ by Chinese authorities would deepen fears that Hong Kong’s promised autonomy is under attack.”
On November 3, the Hong Kong High Court heard a request for judicial review sought by Hong Kong’s top leader, Chief Executive Leung Chun-ying, and the secretary of justice, Rimsky Yuen. Leung and Yuen sought to overturn the decision of Andrew Leung, the Legislative Council’s president, to allow two legislators to retake oaths of office after they did not do so at the swearing-in ceremony on October 12. At that ceremony, Yau Wai-ching and Sixtus Baggio Leung Chung-hang of the Youngspiration Party did not take the legislators’ oaths verbatim, but instead swore allegiance to the “Hong Kong nation,” pronounced China as “Chee-na,” a derogatory term, and replaced the word “Republic” with a profanity. They also unfurled a banner that said “Hong Kong is not China.”
NPCSC Chairman Zhang’s announcement suggests that the body may issue an interpretation before the Hong Kong High Court hands down a ruling. The committee has indicated it plans to interpret article 104 of the Basic Law, which states that members of the Legislative Council shall “in accordance with law, swear to uphold the Basic Law… and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.” It is unclear when the interpretation will be issued, though it could be on November 7, the day the NPCSC concludes its meeting in Beijing.
Article 158 of the Basic Law empowers the NPCSC to interpret the Basic Law and any interpretations issued will need to be applied by the High Court or on appeal. However, regardless of the merits of the case, article 158 should not be interpreted to allow the NPCSC to intervene in cases currently before the courts.
The United Nations Basic Principles on the Independence of the Judiciary provide that it is “the duty of all governmental and other institutions to respect and observe the independence of the judiciary.” The principles prohibit “any inappropriate or unwarranted interference with the judicial process.”
This will be the fifth time the NPCSC has “interpreted” the Basic Law since Hong Kong’s return to mainland control in 1997. The four previous occasions were: in 1999, over the right of abode; in 2004, over universal suffrage; in 2005, over the terms of the chief executive; and in 2011, over the issue of state immunity. The 1999 and 2005 interpretations were requested by the Hong Kong government. In the 2011 case, the Hong Kong Court of Final Appeal requested the NPCSC’s interpretation.
The 2004 interpretation was the only case other than the current one initiated by the NPCSC absent any referral from Hong Kong. In that decision, the NPCSC’s ruling on procedures to election methods for the selection of the chief executive and the Legislative Council made it more difficult for Hong Kong to obtain universal suffrage. The interpretation generated strenuous objections in Hong Kong at the time.
The current case is unprecedented in that the NPCSC’s move to interpret the Basic Law is taking place while legal proceedings are ongoing in Hong Kong, Human Rights Watch said.
This NPCSC interpretation comes in the context of the Hong Kong and Beijing governments claiming that individuals who advocate Hong Kong independence have violated the Basic Law, even though the right to freedom of expression is protected in the territory. In July 2016, ahead of the Legislative Council elections, the governmentdisqualified six candidates for their pro-independence stance. In comments preceding the NPCSC interpretation, pro-Beijing media quoted Hong Kong government sources who said the central government decided to interpret the law in order to “rein in the calls for Hong Kong independence.”
“Beijing is trying to stem pro-independence sentiments, but it is coming at the expense of Hong Kong’s judicial independence,” Richardson said. “This hardline position will almost certainly harden resentment to the Chinese authorities’ heavy hand.”
This report prepared by Human Rights Watch.