Beijing interpretation on Legislative Council oath taking rattles Hong Kong

Beijing’s decision to opt for a Basic Law interpretation over two Youngspiration legislators’ insulting oaths is contentious, but there may be logic to the move

PUBLISHED : Wednesday, 02 November, 2016, 11:23pm
UPDATED : Wednesday, 30 November, 2016, 10:59am

A decision by the mainland’s top legislative body to intervene over the oath-taking shenanigans of two localist lawmakers caught many Hongkongers by surprise when speculation gathered steam and sources confirmed the move.

But for the mainland’s political elite infuriated by the pair’s conduct, anger was building up over weeks.

The imminent ruling by the National People’s Congress Standing Committee (NPCSC), which is due to begin deliberations on it on Thursday, was triggered by a chain of events that made the controversial move inevitable.

Beijing pre-empting Hong Kong courts on oath-taking case would put ‘unnecessary pressure’ on judges, chief executive hopeful says

A Hong Kong government source said during the sixth plenum of the Communist Party’s Central Committee held in Beijing last week, committee members expressed indignation at the derogatory oath-taking by Youngspiration lawmakers Sixtus Baggio Leung Chung-hang and Yau Wai-ching.

“They called for effective action to rein in the calls for Hong Kong independence. Interpretation of the Basic Law is inevitable against this backdrop,” the source told the Post.

During their oath-taking on October 12, the duo pledged allegiance to “the Hong Kong nation” and pronounced China as “Chee-na”, a variation of the derogatory Shina used by Japan during the second world war. To add insult to injury, they displayed a banner with the words “Hong Kong is not China”.

That was not all. The pair popped up in Taipei at a seminar and urged Hong Kong to “insulate” itself from the ­mainland, just two days before the sixth plenum began on October 24. Their Taiwan tirade further irritated Beijing leaders wary of any “collusion” among separatist forces in Hong Kong, Taiwan and even Tibet and Xinjiang.

Ironically, if their actions had taken place earlier or later, the NPCSC route chosen by Beijing might not have occurred so serendipitously. The eight-day meeting of the Standing Committee started on Monday, four days after the conclusion of the sixth plenum. The committee’s meeting, which should have been held at the end of last month, was pushed back because of the need to make way for the sixth plenum.

Watch: Hong Kong localists force entry into legislature for oaths

The Standing Committee’s deliberations on Thursday morning coincide with the High Court’s hearing of the judicial review sought by the Hong Kong government to bar the two from taking up their seats in the Legislative Council.

It marks the first time Beijing has pre-empted the city’s courts over a case for which an initial hearing has been held.

A source familiar with the situation said Beijing chose the route of intervening in the row with an interpretation of the Basic Law because it wanted a fast track to resolve the controversy once and for all.

“The judicial process could take more than a year if either the government or the two localists loses the case and either side appeals against the Court of First Instance ruling,” he said. The lawsuit would probably eventually proceed to the Court of Final Appeal.

And as the legal case made its way through the courts, there would be every possibility Legco would be wracked by chaos if the duo continued to storm the weekly session.

Past precedent also suggests that delays could cause sentiment to solidify and take hold. Consider the first time the Standing Committee intervened in a legal interpretation.

This was over a right-of-abode case heard by the Court of First Instance shortly after China’s resumption of sovereignty over Hong Kong in July 1997.

In January 1999, the Court of Final Appeal ruled that Ng Ka-ling, a child born on the mainland to a Hong Kong father, had right of abode in the city.

Hong Kong’s legal sector condemned the Standing Committee’s interpretation of the Basic Law five months later – that reversed the top court’s verdict – as “the death of judicial independence”.

An interpretation of the Basic Law after the court made a ruling that went against the judgment would create “a worse perception” than intervening now in the case of the oath-taking debacle, the source said.

He also offered another reason. “Beijing chose to wait for Hong Kong’s courts to complete the judicial proceedings in the late 1990s but the situation has changed after Xi Jinping, who is more decisive and never hesitates to make tough decisions, became the paramount leader,” he said.

There is also the urgent need to halt any flirting with independence. “Even if the government wins the lawsuit, someone else might in future do something similar to what the Youngspiration duo did earlier. Similarly lengthy judicial proceedings could take place again,” the source added.

Professor Lau Siu-kai, vice-chairman of the mainland’s semi-official think thank, the Chinese Association of Hong Kong and Macau Studies, said holding back an interpretation of the Basic Law until Hong Kong ‘s courts made a ruling would create lingering uncertainty and chaos.

“It would be politically embarrassing if the Standing Committee’s interpretation of the relevant clauses of the Basic Law differs from that of Hong Kong’s courts,” he said.

New People’s Party chairwoman Regina Ip Lau Suk-yee said on Wednesday the good side of an interpretation was it could speed up the process. “It may be two years for the local judicial process to resolve the case,” the executive councillor said.

“The downside is an interpretation will undermine Hong Kong’s rule of law and the authority of the Hong Kong government,” Ip said.

Legal academics and lawmakers from both the pan-democratic and pro-establishment camps called for the oath-taking case to be dealt with by the local courts.

Even on Tuesday night when news broke about the mainland intervention, Secretary for Justice Rimsky Yuen Kwok-keung maintained that he hoped the case could still be handled within Hong Kong’s legal system.

“ I believe the case will be handled in a fair, just and professional manner by the court and judges.”

It is understood that Chief Executive Leung Chun-ying shared the views of Yuen, a prominent barrister before joining the government four years ago, although Leung said on Tuesday he would not rule out asking the Standing Committee to interpret the mini-constitution.

While all eyes are on the Standing Committee’s imminent deliberations, the ongoing oath-taking controversy is set to have a bearing on next year’s chief executive election.

A mainland official handling Hong Kong affairs said it was noteworthy that the central government had yet to spell out the criteria for the next leader.

In July 2011, Hong Kong and Macau Affairs Office Director Wang Guangyaspelled out the criteria for the chief executive to be elected the following year. Wang stressed the importance of having a strong governing ability and wide support from the public apart from the standard “love-the-motherland and love-Hong Kong” requirement.

The mainland official said compared with previous chief executive elections, the central government would take into account potential aspirants’ stance on Hong Kong independence in next year’s race.

“The central government will expect serious contenders to have an unequivocal stance on the issue,” the official said.

Beijing has yet to indicate its preference for any potential candidate for the top job. Leung’s stance on Hong Kong independence is seen to be tougher than his potential rival, Financial Secretary John Tsang Chun-wah.

However, Lau – a former head of the Hong Kong government’s Central Policy Unit – said Beijing was now more inclined to handle the issue of Hong Kong independence, where national security is at stake – on its own terms.

“However tough the chief executive is doesn’t make much of a difference,” he said.