Last Friday, another four of Hong Kong’s democratically elected legislators were booted out of Legco on technicalities. The technicality is that, under Article 104 of the Basic Law, the lawmakers are required to take an oath. Thus far in HK’s Legco, the taking of oaths has been regarded as something between a formality and a joke, and has been used by incoming legislators to score some cheap political points. This time was no different, with over a dozen incoming lawmakers scoring points one way or another. But, with Beijing increasingly insecure, it pulled out all the stops to have undesirable lawmakers removed. Appealing to – with a certain irony – the feudal and anachronistic ritual of oath-taking, Beijing has now had six lawmakers thrown out for not following the exact form and not being solemn and sincere, with at least another two in the pipeline.
Central to the judgement is Beijing’s interpretation of Article 104. This was handed down on 7 November, 2016, and sets out the standards for solemnity and sincerity in taking oaths. This interpretation was rushed through in order to be available for the judgement to be handed down a day or two later for the two lawmakers who were first ejected. As it happens, that judgement relied on the Oaths and Declarations Ordinance rather than the interpretation, so the rush was unnecessary.
It may also render the interpretation invalid.
(You don’t have to be a lawyer for what follows – it’s in plain English.)
Article 158 sets out the means by which the NPCCC may interpret the Basic Law and the law. I’ve highlighted the relevant passages in bold:
The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.
The Standing Committee of the National People’s Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.
The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People’s Congress through the Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected.
The Standing Committee of the National People’s Congress shall consult its Committee for the Basic Law of the Hong Kong Special Administrative Region before giving an interpretation of this Law.
On each of the previous four occasions on which the Hong Kong Government has sought an interpretation, it followed the above procedure. The cases went through the lower courts, the CFA referred the matter to the NPCCC, and the NPCCC’s interpretation was applied in forming the final, non-appealable judgement.
On this occasion, in its rush to deliver an “Interpretation,” the NPCCC simply discarded due process. The interpretation was handed down by the NPCCC, unasked for by the CFA or any other court in Hong Kong.
The absence of due process completely eludes the judge and counsel, but is surely very relevant. It would invalidate the 7 Nov interpretation.
Then we have the timing. The final clause of Article 158 (italicised by me) states that “judgments previously rendered shall not be affected.” The oaths were taken on 12 October, 2016. The Interpretation came out on 7 November, 2016 (see para 19 of the judgement). This means that, even if the interpretation is valid, the judge’s conclusion in para 22 that “true and proper meaning of BL104 and takes effect from 1 July 1997” is in direct violation of Article 158.
Again, I would have thought that Senior Counsels would have spotted this.
Constitutional law aside, the larger picture is grim. The government seems prepared to take whatever steps are necessary to win. Hence, it seems to have given itself an unlimited budget for doing so. And while the government is under no legal obligation to recover the huge legal costs it is racking up, it has made it clear that it intends to do so. At millions of dollars per legislator, this will push many into bankruptcy.
That threat will yield the compliant Legco that government so wants. But the price is huge. Dissent, no matter how theatrical and no matter how offensive some people find it, so long as its expression is not violent, is the hallmark of a healthy body politic. Suppression is the hallmark of authoritarianism. That’s the essence of two systems, and the essential difference between rule of law and rule by law. It’s clear which direction Hong Kong’s government has set.