Interpretation by top legislature is both legitimate and necessary

Updated: 2016-11-07 09:45

By Lau Nai-keung(HK Edition)

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The central government in Beijing has informed the Hong Kong government that members of the country's top legislative panel, the Standing Committee of the National People's Congress (NPCSC), will discuss interpreting an article in the city's Basic Law covering oaths taken by officials and lawmakers.

The move comes in response to a provocative display of anti-China sentiment by a few newly elected Hong Kong lawmakers at their swearing-in ceremony last month.

As a member of the Hong Kong Basic Law Committee under the NPCSC, I was being consulted on the issue. It is not appropriate for me to disclose details of the discussion here; suffice to say that the Basic Law Committee and the NPCSC have considered carefully every aspect surrounding this dispute, both legally and politically, and have made sure that any action taken would comply fully with the rule of law.

For a long time, the dissidents have advocated incorrect understandings concerning the NPCSC interpretation on the Basic Law. These falsehoods have confused the public and must be rebutted.

Among the dissidents it is commonly believed that a Beijing ruling would undermine the independence of Hong Kong's courts, and therefore by extension undermine our rule of law.

Interpretation by top legislature is both legitimate and necessary

This is actually a non-issue, as Hong Kong's Court of Final Appeal has discussed the power of the NPCSC to interpret the Basic Law extensively in Lau Kong Yung v Director of Immigration (FACV Nos 10 and 11 of 1999).

One of the issues argued in that case concerns Article 158 of the Basic Law, which states that "the power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress". The dispute was whether this power is absolute or conditional.

In that court case, it was argued that "under Article 158, properly interpreted, the Standing Committee cannot interpret the Basic Law except upon a judicial reference by the Court which would relate only to the excluded provisions". This mistaken understanding sees Article 158 as "a constitutional restraint on the Standing Committee's power" and believes incorrectly that "the high degree of autonomy accorded to the Region by the Basic Law adopted by the National People's Congress included the (absolute) power of final adjudication".

In the Court of Final Appeal judgment, Chief Justice Li made it clear that "this argument cannot be accepted. It is clear that the Standing Committee has the power to make the Interpretation. This power originates from Article 67(4) of the Chinese Constitution and is contained in Article 158(1) of the Basic Law itself. The power of interpretation of the Basic Law conferred by Article 158(1) is in general and unqualified terms." Chief Justice Li went on to rule that "(the) power and its exercise is not restricted or qualified in any way by Articles 158(2) and 158(3)".

Article 67(4) of the national Constitution states, "The Standing Committee of the National People's Congress exercises the following functions and powers," one of which is "to interpret laws".

The Hong Kong Basic Law was adopted in April 1990 by the Seventh National People's Congress and signed by then president Yang Shangkun. Being a national law of the People's Republic of China, it is subject to the NPCSC's power of interpretation.

The prevalent mindset among Hong Kong people that an NPCSC interpretation is a bad thing has to change. The NPCSC interprets the Basic Law to help Hong Kong, not to harm it. As such, NPCSC interpretations should be considered valuable inputs to Hong Kong's local legal system.

In the current situation, with pro-independence forces infiltrating our legislature, it is clear that this is a matter beyond the local jurisdiction. It has now become an issue of national unity and the integrity of our sovereignty.

People around the world are confused as to why these localists might be allowed to sit in Hong Kong's lawmaking body. Conflicts arise between patriots and anti-Chinese extremists. We can wait for the court's ruling on the judicial review, and then for the very possible appeals, and at the same time let both sides fight in the streets. But that would be too damaging for society. The NPCSC has the power and the responsibility to pull Hong Kong back onto the right track with a proper interpretation of the relevant laws. As such, an NPCSC interpretation is both legitimate and necessary.

(HK Edition 11/07/2016 page1)