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Tuesday, November 8, 2016, 01:02

Interpretation of the Basic Law is totally justified

By Ho Lok-sang

The Basic Law of Hong Kong is like most laws in that implementation will usually necessitate “enrichment” through interpretation. When most laws are first proposed and enacted, their proponents cannot anticipate all the circumstances that may arise, so that the courts will normally have to add the “details” that may apply under different Interpretation of the Basic Law is totally justified circumstances. These interpretations, under the common law tradition, are considered to be part of lawmaking. The overriding concern of these interpretations is safeguarding the public interest by making reference to the original intent of the law.

The supreme body responsible for the final interpretation of the Basic Law is the Standing Committee of the National People’s Congress (NPCSC). During normal times the judges of Hong Kong’s courts can make an interpretation without the NPCSC stepping in. Out of respect for the independence of Hong Kong courts, the NPCSC will normally let them make the interpretations. However, when the national interest and the “One Country, Two Systems” principle are at stake, there is a case for the NPCSC to step in. What unfolded during and following the so-called oath-taking of Youngspiration legislators-elect Yau Wai-ching and Sixtus Leung Chung-hang appears to totally justify the NPCSC stepping-in.

Civic Party legislators have accused the NPCSC interpretation of the law of undermining the rule of law and the “One Country, Two Systems” principle. The Civil Human Rights Front organized a rally in protest against the NPCSC interpretation of the law. It has won the support of 15 student unions of Hong Kong’s institutions of higher learning. Rather than proving the NPCSC move is absurd, all this shows is that the NPCSC move is well justified.

Dennis Kwok Wing-hang, Civic Party legislator and barrister-at-law, says that when the judicial review of the oath-taking saga is awaiting a High Court ruling, interpretation of the Basic Law will undermine Hong Kong’s rule of law. He says Article 104 of the Basic Law is written in very clear language and there is little room for interpretation. I agree that Article 104 is indeed written in very clear language. Yet there are still many who argue that the behavior of legislators-elect Yau and Leung during the swearing-in did not constitute declining or neglecting to take the oath as required by Article 104. The Oaths and Declarations Ordinance clearly spells out the consequences of such behavior, again in unequivocal terms, which is that anyone “shall, (a) if he has already entered on his office, vacate it, and (b) if he has not entered on his office, be disqualified from entering on it”. When members of the legal profession, particularly the legal counsels who advised the president of the Legislative Council, consider that the behavior of Yau and Leung did not constitute declining or neglecting to take the swearing-in oath, there arises a need for a higher body to define what is acceptable oath-taking, and what constitutes “declining” or “neglecting” the oath-taking.

If Yau and Leung had been disqualified because they fall into the category required to give up office as specified under the Oaths and Declarations Ordinance, their status as legislators was already over when they tried to storm into the meeting room with their assistants on Nov 2. Some say they were elected by tens of thousands of voters and so have the constitutional right to take the oath and to serve as legislators. But they were given the chance. And they did not make good use of that chance. They abused that right and only have themselves to blame. The Oaths and Declarations Ordinance did not give the president of LegCo the authority to allow a second oath-taking.

Some say the government’s application for a judicial review to challenge the initial decision of LegCo President Andrew Leung Kwan-yuen to give the duo another chance to make the oath constitutes a violation of separation of powers. Quite apart from the controversy over whether Hong Kong indeed practices separation of powers, separation of powers is needed to ensure there are checks and balances. These should apply to any of the three branches of the government — the executive, the judiciary, and the legislative branches. If the president of LegCo deviated from the requirements of the law, of course the government can and should challenge his decision. If there is a deviation from established standards and procedures under the law, anyone — the government included — has the right and duty to seek judicial review. The president of LegCo has no immunity from checks and balances.

A strong justification for the NPCSC to step in at this moment is that this may be necessary to preserve “One Country, Two Systems”, in which case the benefits would clearly be far greater than the costs. When a legislator-elect advocates “Hong Kong independence” and holds the Basic Law in contempt, the “One Country, Two Systems” framework comes under threat. The stability and prosperity of Hong Kong depends so much on the “One Country, Two Systems” arrangement that we cannot afford to take any risks.

The author is dean of business at the Chu Hai College of Higher Education.

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