Beijing should have left Hong Kong courts to rule first on oath-taking lawmakers
Jessica Fernando says all who have a stake in upholding Hong Kong’s rule of law – including the central government – should ensure procedures are adhered to. In this light, the NPC interpretation was an overreaction
Hong Kong is a miracle in many ways. Its judiciary is world-class and its government systems work. With a transport system that is among the world’s best, it is home to more than 7 million people, who all live, work and play close together without chaos.
Hong Kong’s independent judiciary makes it a safe place to invest in. People know that any disputes can be dealt with fairly through the courts. A strong anti-corruption regime prevents government officials from overstepping their boundaries and stops parties abusing their influence. Contracts are honoured. On the whole, disputes can be settled without fear of unfairness and the need to make undue compromises.
The Basic Law is the foundation of Hong Kong’s legal system. Taking the oath under Article 104 of the Basic Law is part of that structure. The legal furore over legislators’ oath-taking stems from a key procedural point: Hong Kong courts should be the ones that refer matters to the National People’s Congress Standing Committee. Respect for procedure must come from every side.
Why Beijing saw fit to interpret Hong Kong’s Basic Law
Hong Kong has to internalise a deep contradiction: we have the separation of powers and the rule of law but they’re not boundless; we have access to universal principles but within limits. We cannot be a nation-state, but we have to govern our own affairs within a framework that respects the law. So far, Hong Kong’s institutions have never required the resolution of its foundational paradox.