CHINA-HONGKONG: NPC & THE BASIC LAW
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On November 4, 2016, the Chairman of the National People’s Congress (NPC) Standing Committee, Zhang Dejiang, announced that the Committee will issue an interpretation of Hong Kong’s Basic Law. 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. There is anticipation that the ruling could disqualify them from office. On November 3, the Hong Kong High Court heard a request for judicial review sought by Hong Kong’s Chief Executive Leung Chun-ying, and the Secretary of Justice, Rimsky Yuen. They 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.
(Comment: 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.)
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