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Beijing intervention undermines Hong Kong's autonomy

Central government suppresses separatist aspirations

Beijing intervention undermines Hong Kong's autonomy

Pro-independence lawmaker Yau Wai-ching holds a court ruling as she leaves the High Court in Hong Kong on Nov.15. The court disqualified her and another pro-independence lawmaker from parliament; a week after Beijing said it would not allow the pair to be sworn into office. (Photo AFP)

Published: December 01, 2016 08:42 AM GMT

Updated: December 01, 2016 11:26 AM GMT

It has rarely been suggested that Hong Kong, as a special autonomous city under Chinese rule since 1997, is trouble-free and without quarrels.

Nevertheless, people in Hong Kong have much confidence in our system for dealing with controversies. We are yet to elect our own administration, but we have a partly elected legislature which makes and amends laws as a basis to prescribe duties and rights for different bodies and individuals; whenever there are disputes to be adjudicated, we may rely on a judiciary which is highly respected, internally and internationally.

With an official recognition of Chinese sovereignty over this city, there is a consensus in Hong Kong that it is unnecessary to remove the boundary, in terms of ruling systems and social order, which still runs virtually along the Shenzhen River.

But what happened in the first week of November may be viewed as the construction of a sort of "channel" between Beijing and Hong Kong, which does not transport food or water, but brings regulations and command, southwards directly.

On Nov. 7, the Standing Committee of the National People's Congress (NPCSC) concluded its 24th session in Beijing. In the press conference held immediately afterwards, Li Fei, deputy secretary-general of the NPCSC and chairman of the Basic Law Committee of Hong Kong Special Administrative Region of the People's Republic of China, gave details in respect of a text of interpretation of the Basic Law, the mini-constitution of Hong Kong, which had just been adopted and announced by the NPCSC hours before.

The interpretation refers to Article 104 of the Basic Law, which requires major officials, lawmakers and judges to pledge their allegiance to the Hong Kong Special Administrative Region of the People's Republic of China, and swear to uphold the Basic Law when assuming office. The interpretation document refers to no name in its entirety, but it must never be difficult for anybody to identify who and what was targeted by the interpretation.

During the inaugural session of the Hong Kong legislature, more than a dozen of its members, most of whom came from separatist or self-determinationist alliances, made use of the oath-taking procedure as a chance to demonstrate their dissent to the local government, or their will to pledge allegiance to the people in Hong Kong by referring to Chinese sovereignty in the oath as minimally as possible.

Two young members from the separatist party, Youngspiration, were regarded as the most provocative ones: they inserted the "F" word when pronouncing the whole name of China, and replaced "China" with pronunciations like "Geen-na" or "Sheen-na". They were among several members whose "oath" was ruled by the administering official as invalid, thus they were unable to assume their office right away.

The Chief Executive, CY Leung, sought to apply for a court order to remove the Youngspiration duo from office. His lawyer told the court that by virtue of Article 104 of the Basic Law, any major public officials or lawmakers must pledge their allegiance in the form as prescribed by law. In addition, under the local law on oath and declarations, an official who "declines or neglects to take an oath" as requested shall either vacate his/her office, or be disqualified from entering it.

Unlike other important constitutional or administrative lawsuits, which may take weeks or months before trial, the judge, Thomas Au, agreed to hear the case 16 days after Leung filed his application. After the one-day trial, Au indicated that he should give the judgment as quick as possible. It eventually took him 12 more days to give a ruling, which came eight days later than NPCSC's interpretation.

Obviously, the central authorities found it intolerable to wait until the next NPCSC session, which should take place several months later to see how the court in Hong Kong adjudged the matter. According to pro-Beijing critics, "Grandpa" has always been so "tolerant" and that this was only the fifth interpretation of the Basic Law since 1997 when it became effective.

The issue of interpreting the Law had never been immune from controversies despite the existence of Article 158 in the mini-constitution, which empowers the NPCSC to interpret the Law, while at the same time prescribes that courts in Hong Kong shall be allowed to interpret the Law, unless when issues involving powers exercised by the central government arise, in such cases referral for interpretation from the NPCSC is mandatory.

There had only been one referral for NPCSC interpretation made by the judiciary of Hong Kong. In 2011, the Court of Final Appeal requested guidance from the central authorities in respect of the matter of state immunity when the government of the Democratic Republic of Congo was sued in a commercial case. In 1999, the NPCSC decided to interpret the Law in relation to immigration regulations; even after Hong Kong courts ruled the matter as one entirely within the jurisdiction of the Hong Kong government.

The other two interpretations were made with reference to the election reforms and length of terms of the chief executive, when no related lawsuit had ever been brought.

By "interpreting" Article 104, the NPCSC had done much more than mere clarification of ambiguous terms; instead, it even laid down new provisions in terms of validity of oath, procedures of invalidation and legal consequences in details.

The "interpretation" manifestly exceeds the extent of interpretation of general constitutional terms, and is in fact more or less the same an amendment to local laws, which can be directly enforced by oath-administering officials.

While some Beijing supporters argue that the Chinese government never intends to "harm" the rule of law and judicial autonomy in Hong Kong, it is indisputable that embarrassment has been caused. What happened after the interpretation and Au's ruling was his direction that all parties were to submit again as to the application of the interpretation to the chief executive's case, even though they had already given their submission in trial.

Right after Au agreed that his ruling should be bound by the interpretation, he concluded, in exactly the same judgment, that his conclusion should be the same even if the interpretation had never existed.

And there are confusions as well.

The so-called test of "sincerity and solemnness" when taking an oath could hardly be a familiar concept in the legal system of Hong Kong; if no assumption of office is possible for the duly elected members before taking a "valid" oath, it would virtually be impossible for the Hong Kong legislature to have any form of emergency sessions if necessary. By imposing "immediate" sanction of disentitlements for members failing to take a "valid" oath, those members who "play tricks" during oath-taking are subject to monetary punishment, in terms of recovery of salaries or disbursements, which may not be imposed on those who are disqualified by means of impeachments or election lawsuits.

No one could tell (or be willing to tell) if the NPCSC had actually considered such unintended consequences before adopting the interpretation. In any event, the interpretation, as well as Au's ruling, which is meant to be bound by the interpretation while at the same time not influenced by it, had disqualified the membership of two young lawmakers, who were duly elected by 60,000 votes.

In light of the comprehensive content of the interpretation, pro-Beijing citizens have filed more applications in the High Court to disqualify other members who allegedly "disrespected" the People's Republic of China when taking the oath. It is anticipated that more legislators might be disqualified.

As a result, this can lead to the most widespread removal of opposing forces from the legislature in the history of this city; right after the pro-Beijing bloc scored a record-low percentage of seats in the general election.

Hardliners in Beijing succeeded in enforcing the central government's legal power to its utmost in suppressing the separatist force in the Hong Kong legislature. Unfortunately, their move is simply proving how fragile the guarantee of "one country, two systems" is. It is still uncertain how the turmoil can be put to an end.

Charles Tsang contributes to several Hong Kong online media and holds a Bachelor of Laws Degree from the University of London.

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