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Monday, November 7, 2016, 01:39

NPCSC can and will exercise its constitutional right when necessary

By Yang Sheng

The Standing Committee of the National People’s Congress (NPCSC) is discussing how to give a clearer interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region, in the matter involving two separatist lawmakers-elect who turned their swearing-in ceremony into a farce. As soon as the news came out on Friday morning that the interpretation exercise had appeared on the NPCSC meeting agenda, many Hong Kong residents applauded and hoped the move would help resolve the Legislative Council swearing-in issue, which has also been brought to Hong Kong’s High Court for judicial review. Such popular sentiment is perfectly justified, since the two separatist politicians brazenly violated the Basic Law and relevant Hong Kong law by advocating their unconstitutional cause and insulting the whole nation, including Hong Kong people.

The general understanding of the political situation in Hong Kong is that separatism has come a long way since the illegal “Occupy Central” protests in fall 2014. Not only have several separatist groups come to prominence in the past two years but some of their leaders won their bids for LegCo seats in September as well, most notably Yau Wai-ching and Sixtus Leung Chung-hang. These two put on an outrageous display of utter contempt toward the Basic Law and relevant Hong Kong law by altering the LegCo oath and using foul language to insult the whole Chinese nation during their swearing-in on Oct 12.

More than a million people around the world as well as in Hong Kong have signed an online petition demanding the immediate disqualification of Yau and Leung as members of the LegCo, while about 13,000 local residents held a protest rally outside the LegCo Complex on Oct 26 when the two separatists tried unsuccessfully to “retake” the oath. The fact is they have shown absolutely no intention to change their mind on this matter of utmost principle or give the public an inkling of a reason to believe they can be trusted.

Now the NPCSC is trying at its current session in Beijing to resolve the situation surrounding the oath-altering fiasco by interpreting Article 104 of the Basic Law. Article 104 stipulates: “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.”

Even before Secretary for Justice Rimsky Yuen Kwok-keung confirmed the NPCSC’s decision to interpret the Basic Law to the Hong Kong court on Friday morning, some members of the legal sector in Hong Kong expressed “concern” and “urged” the NPCSC to “exercise restraint”. Such views are both unnecessary and misleading. They should know better than anyone that the NPCSC alone holds the power to the ultimate interpretation of the Basic Law of the HKSAR, and it holds the discretion to decide when to exercise this power.

As some legal experts have already pointed out, there are precedents of Basic Law interpretation being done before the court ruling, as in the Congo case in 2011. As a matter of fact, it is better for the interpretation exercise to come before the Hong Kong court has handed down its verdict than after. If done after the verdict, the local court may be seen to be overruled by the NPCSC, although the highest organ of State power does have the authority to do so. If done before the verdict, as is likely to happen now, it will be seen as the NPCSC providing the Hong Kong High Court with guidance over how to make a ruling in this case. Hence it will take away much of the mammoth pressure that is mounting on the judges at this moment.

The author is a current affairs commentator.

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