Beijing Votes Against Hong Kong’s Judicial Independence

Beijing has unanimously approved a vote on the interpretation of Article 104 of Hong Kong’s mini constitution, the Basic Law. The ruling was in direct response to the election of two vocal pro-independence advocates who used their swearing-in ceremony to make a statement against Hong Kong’s incumbent government, which they view as a mere puppet government of China, without Hong Kong’s interests at heart.

Initially, it seemed, the issue of the failure by Youngspiration’s Sixtus “Baggio” Leung and Yau Wai-ching to properly take their oaths would be settled by Legislative Council President Andrew Leung Kwan-yuen, who announced that he would give them another opportunity to take their oaths. The government’s decision to bring a legal challenge to this decision set the executive branch and legislature on a collision course in court.  But even this intentional attempt by the incumbent chief executive to deconstruct the legislative council, as well as affect the results of a fair election, would have at least allowed the city’s independent judges the opportunity to settle the legal position through the courts, where arguments from both sides would be heard, and result in an eventual ruling based on principles and precedents.

However, Beijing had other plans. China’s National People’s Congress Standing Committee took it upon itself to issue a decree with its interpretation of Article 104. Significantly, unlike previous Standing Committee interpretations in 1999 and 2005, there has been no formal request from the Hong Kong government for clarification. Instead, this time the interpretation was initiated by Beijing, unprompted.

Article 104 relates to the oath-taking process when a legislative councilor assumes his or her seat, and states:

“When assuming office, the chief executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China.” 

Beijing’s interpretation was broken down into three, largely subjective parts.

First, the decree tackles the content of the oath. The ruling stipulates that it is a “statutory requirement and condition” for people taking public office to take the oath as stated in the Basic Law. In particular, they must “swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.”

Next, the decree sets out the definition of “in accordance with law,” in several parts. First, the decree determines that if candidates do not take a valid oath accepted by law, or if one declines to swear in, that person cannot assume office, and therefore cannot exercise the duties and enjoy the privileges of public office. Second, the decree states that the oath-taking must fulfill the statutory requirements in format and content. The candidate must take the oath sincerely, solemnly, and accurately. They must read out the phrase “uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China” and “bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.” Third, if the oath taker refuses to take the oath, he or she shall be disqualified from assuming public office. One is deemed to have refused to take the oath – and subsequently will have his or her oath invalidated – if he or she deliberately reads out an oath different from the statutory oath or does it in an insincere or frivolous manner. And lastly, the oath administrator has the duty to confirm the oath-taking is carried out in accordance with the law and that the oath complies with this interpretation and Hong Kong law. Any oath that does not satisfy this interpretation shall be confirmed as “invalid” and retaking the oath is forbidden.

The decree also deals with the consequences of a breach owing to the fact the oath is legally binding. Those who take the oath must genuinely believe it and be legally bound by it. Those who make a “false oath,” or engage in behaviour contrary to the oath, will bear legal responsibility.

The interpretation adds so much more detail to the article that some have said the ruling amounts to a new law. The level of detail and prescription of the format and conduct for legislators taking the oath and the consequences of non-compliance ultimately allows China, or the person it places in charge of the legislative council, to do as it wills.

Any interpretation issued by the National People’s Congress Standing Committee is binding on the courts under Article 158 of the Basic Law. This interpretation delivered by the committee thus effectively overrides any issues already before Hong Kong’s courts, and renders the proceedings pointless. In doing so, China has willfully undermined the city’s separate legal system and rule of law.

It seems with each reactionary measure taken by the Chinese government, invariably a number of new issues are created. The issue now is no longer the oath-taking ceremony but Beijing’s interference. Had Hong Kong been allowed to follow the judicial process, the city’s high degree of autonomy would have remained intact; ideally an interpretation from Beijing would only have come at the request of the courts of Hong Kong, rather than being forced upon them before they had the opportunity to rule on the matter.

There is no reason why Hong Kong could not deal with such matters on its own. Rather, Beijing preempted the courts of Hong Kong, disallowing their preferred option of reaching an independent ruling. The Standing Committee did not want to be forced into overturning a standing court ruling, which would invariably result in far-reaching consequences.

The Hong Kong government and Court of Final Appeal have rarely asked for interpretations since Hong Kong was officially handed back to China in 1997. This was the fifth time the Standing Committee has interpreted the Basic Law and the second time it initiated such a move. Most significantly perhaps, this was the first time the committee sought to pre-empt a court case already in progress. The committee’s ruling cuts to the core of the concept of “one country, two systems” and the move strikes a blow to Hong Kong’s autonomy under the Basic Law.