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Monday, September 22, 2014, 08:57

NPCSC’s decision cannot be challenged

By Song Sio-Chong

During a meeting with the visiting Hong Kong Federation of Trade Union (HKFDU) delegation on Tuesday, Zhan Dejiang, chairman of the Standing Committee of the National People’s Congress (NPCSC), stressed that the decision by the top legislature cannot be challenged.

NPCSC’s decision cannot be challengedBy virtue of the Basic Law, Hong Kong residents recognize the NPCSC has, among other things, the power to return and invalidate any law enacted by the SAR legislature which does not conform with the Basic Law (Article 17(3)). In accordance with the Constitution, the NPCSC also has the power to enact and amend statutes — with the exception of those enacted by the National People’s Congress (NPC) (Article 67(2)). This means the landmark NPCSC decision on political reform in Hong Kong has the same legal status as a national law applicable to the SAR.

Partly because of the fact that the NPCSC’s decision is not listed in Annex III of the Basic Law under Article 18, and partly because the Basic Law does not use the word “instrument”, in Hong Kong legal terminology such decisions are called “instruments”, rather than national laws applicable to the SAR. The term “instrument” may be unfamiliar to the mainland legal profession and to experts in jurisprudence. The Oxford Dictionary of Law defines an “instrument” as “a formal document such as a will, deed, or conveyance, which is evidence of (for example) rights and duties”. But the NPCSC’s decision cannot be equated to such an “instrument”. If the NPCSC’s decision has inadvertently been named as an “instrument”, it will be belittled and diminished in importance. Actually the NPCSC’s decision can only be amended or repealed by the NPCSC itself or the NPC — the highest organ of State power (Article 57 and 62(11) of the Constitution).

In such circumstances, it may be necessary for Zhang Dejiang to remind the SAR of the status and legal authority of the NPCSC’s decision on Aug 31. It must be emphasized that this decision cannot be debated or challenged.

Supporters of the decision may ask why the NPCSC did not allow the decision — equivalent to the status of national laws applicable to the SAR — to be listed in Annex III of the Basic Law. According to the decree of the president to promulgate the HKSAR Basic Law on April 4, 1990, the Basic Law includes Annex I, Annex II and Annex III, as well as designs of the regional flag and emblem. If this decision were to be listed in Annex III of the Basic Law, it would be considered part of the Basic Law, and one of the laws in force in Hong Kong (Article 18(1)) instead of just being an “instrument”. Whether the NPCSC’s decision is listed in Annex III or not, the legal effect and authority of this decision remains unchanged. The decision has equivalent status to that of a national law. It must be observed in the same way as the Constitution and the Basic Law. For it also is part of the constitutional framework of the SAR.

It should also be noted that the contents of that decision such as the members, composition and method for forming the Nominating Committee, democratic procedures for the nomination of candidates for the CE post, as well as the quorum of candidates, all concern interpretations of Article 45 of the Basic Law. As the NPCSC has the power to both interpret and make decisions, the decision is, therefore, in absolute conformity with the Basic Law.

No doubt, the central government authorities, operating under “One Country, Two Systems”, will stick to the Basic Law and NPCSC decisions to implement universal suffrage in 2017 in Hong Kong.

It should also be stressed that any radical acts opposing this — such as “Occupy Central” and boycotts of school classes will fail — as will any attempt to challenge the Basic Law.

The author is a HK veteran commentator and professor at the Research Center of Hong Kong and Macao Basic Law, Shenzhen University.

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