LEGCO
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Basic Law

Hong Kong will move on controversial security law, CY Leung says, as Beijing bars independence activists from Legco

Article 23 of Basic Law to be revived after Sixtus Baggio Leung Chung-hang and Yau Wai-ching’s oaths deemed invalid to take office in local legislature

PUBLISHED : Monday, 07 November, 2016, 9:25am
UPDATED : Monday, 07 November, 2016, 7:58pm

Key points from the day:

> The National People’s Congress Standing Committee has clarified the definition and requirements of “swear in accordance with the law” in Article 104 of Hong Kong’s Basic Law – which covers members’ oaths – following the ongoing Legislative Council oath-taking controversy

> A spokesman for the Hong Kong and Macau Affairs Office said: “[Beijing] will absolutely neither permit anyone advocating secession in Hong Kong – nor allow any pro-independence activists – to enter a government institution.”

2,000 Hong Kong police ready round the clock as protests over Beijing’s ruling on Basic Law loom

> Following Beijing’s decision, Chief Executive Leung Chun-ying said Hong Kong would enact Article 23, a controversial provision of the Basic Law relating to national security legislation

> It remains unclear what legal consequences other lawmakers who advocate self-determination may face


12.35pm – Beijing ‘has limited its involvement’

Hong Kong’s leader says the National People’s Congress Standing Committee has now only interpreted the Basic Law five times, showing Beijing has been very careful in exercising this prerogative.

“The NPCSC would not interpret the Basic Law if there was no need for it,” he says, adding that the central government was fully aware of what’s happening in Hong Kong.

12.33pm – ‘We’ll see about the other lawmakers’

Asked how the ruling could impact other lawmakers, Secretary for Justice Rimsky Yuen Kwok-keung says he needs time to study the ruling to decide whether any follow-up action is necessary.

Yuen says past court judgments will not be affected.

Watch: Hong Kong’s leader supports Beijing’s Basic Law ruling

But if there are any issues with other lawmakers’ oaths, he hastens to add, and if they are later taken to court, the court will be duty-bound to apply the ruling as part of Hong Kong law in handling the case.

12.25pm – CY Leung on Article 23

Chief Executive Leung Chun-ying expresses his strongest stance in office to date on Article 23 when asked about the controversial provision of the Basic Law relating to national security legislation.

Leung, who has previously said there is no urgent need to adopt it, says: “The Hong Kong Special Administrative Region shall enact [the law] on its own. We have not seen anyone advocating independence in the past but now we see it. This indeed deserves our attention.”

12.23pm – Justice minister won’t resign

Secretary for Justice Rimsky Yuen Kwok-keung says he will not resign over the ruling that many in Hong Kong view as in incursion against the city’s judicial independence.

In cases of this nature, there are bound to be differences of opinion
Rimsky Yuen, justice minister

“I have said I believe the dispute concerning the oath-taking can and should be resolved in Hong Kong courts,” Yuen says. “I am still of this view.”

“However, in cases of this nature, there are bound to be differences of opinion,” he adds. “Such differences of opinion can be legitimate.”

Yuen says he considered several factors in staying on the job, including that the Standing Committee has the power to interpret the Basic Law, and that the ruling is “not case-specific” but of a general nature that sets forth principles to aid the court to interpret Article 104.

He notes Hong Kong’s court system has remained independent, professional and strong in the past four instances in which the mini-constitution was interpreted. He expresses confidence that the judiciary will retain these qualities.

“Resignation is no more than a gesture,” he says. “One has to consider what has been done in a proper context.”

12.17pm – Legal consequences question

Asked by the Post what legal consequences other lawmakers who advocate self-determination may face if they mention the idea at Legislative Council meetings, Hong Kong’s leader does not provide a direct answer.

“The constitutional fact is that Hong Kong has been part of China,” Chief Executive Leung Chun-ying says. “It is and it will be.”

“The Basic Law is a national law and a Hong Kong law,” he adds. “Any proposition about Hong Kong’s future must be in accordance with the Basic Law.”

12pm – Hong Kong leader to implement ruling fully

Chief Executive Leung Chun-ying says he and the Hong Kong government “support” the interpretation by the National People’s Congress Standing Committee this morning.

“I, as the chief executive, have the duty to implement the Basic Law in accordance with Article 48,” he says. “I and the SAR government will implement the ruling fully.”

11.43am – ‘Why I’m angry at the localists’

Before the press conference, Li Fei spends seven minutes explaining why he’s angry about the Hong Kong localist lawmakers’ use of derogatory language used by Japanese to insult China.

All Chinese in the country and around the world would support what I’m saying
Li Fei

Citing History of Hong Kong, Li says: “Japanese invaders committed atrocities in Hong Kong ... A British soldier was stabbed to death and there were records about thousands of rape victims and killings.”

“There could still be witnesses of these atrocities in the city, and their descendants know what happened,” he adds, asking if anyone should still support “people who betrayed and seek to separate their nation in entering the Legislative Council”.

“I think all Chinese in the country and around the world would support what I’m saying,” he says.

Li demurs when asked if he will visit Hong Kong to explain the interpretation.

“If I’m going, I’ll tell you. But if I’m not going, there’s no need to tell,” he says.

11am – Will ruling affect more lawmakers? Who will the oath administrator be?

Li Fei says the interpretation is retroactive because it reflects legislative intent. “The ruling does not affect previous judgements, but we are not saying the ruling has effect only after it is promulgated.”

But the Basic Law Committee chairman is not commenting on whether other lawmakers whose first oaths were found problematic were to be disqualified.

Li adds that now the oath administrator’s power to validate oaths has been confirmed and “the administrator is someone who can represent the Hong Kong SAR government and be accountable to the central government”.

Asked whether there will be more interpretations, he says the Standing Committee will “only interpret the Basic Law on important issues, but not on Hong Kong’s internal affairs”.

He adds that pro-independence forces have existed before and after Hong Kong’s handover that they have been inciting young people.

10.30am – Beijing needs no request to act

Li Fei rebuts the notion that the National People’s Congress Standing Committee shall only interpret the Basic Law when a Hong Kong court asks it to do so.

How can the entity that grants the authorisation be questioned?
Li Fei, on NPCSC’s authority

“The Standing Committee enjoys the comprehensive and ultimate power to interpret the Basic Law,” he says. “Article 158 of the Basic Law states that the Standing Committee shall authorise the courts of Hong Kong to interpret the provision of the Basic Law on their own in adjudicating cases.”

The courts as an authorised party can only act within the domain of authorisation, Li explains. “How can the entity that grants the authorisation be questioned?” he asks.

“Some people who claim to be legal authorities have been spreading misconceptions since the drafting of the Basic Law that whenever the Standing Committee interprets the Basic Law, it interferes in judicial independence in Hong Kong,” he adds.

10.28am – No judicial interference here

Li Fei dismisses the notion that the interpretation by the National People’s Congress Standing Committee will undermine Hong Kong’s rule of law and judicial independence.

“The core meaning of judicial independence is to act in accordance with the laws, and there is no such thing as judicial independence that goes against the Basic Law.”

‘Sworn in Hong Kong lawmakers with insincere conduct in first oath may face judicial review’

“The Standing Committee is duty bound to clarify the meaning of the Basic Law provisions when various sectors in Hong Kong have different views on the meanings of relevant provisions of the Basic Law,” he says.

“The Standing Committee’s interpretation of the Basic Law is an important component of the rule of law in Hong Kong and it won’t amount to interference with judicial independence in the city.”

Beijing taking ‘appropriate’ action in Hong Kong oath saga: Zhang

10.25am – Loopholes had to be closed

Li Fei says the oath-taking controversy has shown there were loopholes in local laws in implementing the requirements set forth by Article 104 of the Basic Law. He says the saga also reflects the fact that some public office-holders have failed to implement what was required in the city’s mini-constitution.

“I hope Hong Kong will amend its relevant local laws to avoid a recurrence of such incidents,” he adds.

10.20am – Self-determination is the same as independence

Answering the first question at the press conference, from Xinhua, Basic Law Committee chairman Li Fei says the Standing Committee is completely justified in interpreting Article 104, which he describes as essentially requiring all Hong Kong officials to express “political allegiance” to China.

Li says pro-independence ideas have been spreading in Hong Kong in recent years. “Last night there were things happening in Hong Kong, with people holding flags calling for independence,” he says, alluding to clashes outside the central government’s liaison office in the city after a protest.

Another idea, namely self-determination, he says, amounts to a call for Hong Kong independence because such advocates ignore the city’s mini-constitution.

10.10am – In defence of ‘national unity’

Basic Law Committee chairman Li Fei said the pro-independence activists in Hong Kong had seriously violated the principle of “one country, two systems”, the Basic Law, and Hong Kong’s local laws.

The central government] is determined to firmly confront the pro-independence forces without any ambiguity
Li Fei, Basic Law Committee chairman

The country’s territorial integrity, national security and competitiveness would be affected should the central government not confront pro-independence forces in Hong Kong, Li added.

“[The central government] is determined to firmly confront the pro-independence forces without any ambiguity,” he said.

Li alluded to a phenomenon in Hong Kong in recent years of “a minority of people challenging ‘one country, two systems’ and contorting the Basic Law”.

“Since the Legislative Council elections, some people have been advocating independence and saying they want to do it in Legco,” he said. “The interpretation today will help to defend national unity and sovereignty.”

Interpretation of Basic Law ‘a way for Beijing to undermine power of Hong Kong’s judiciary, Legco’

9:55am – Why the National People’s Congress acted

Martin Liao Cheung-kong,a Hong Kong deputy to the National People Congress who sat in on the Standing Committee, says after passage of the draft interpretation that the mainland’s top lawmaking body rendered the interpretation because some candidates for the city’s Legislative Council elections and lawmakers-elect violated the Basic Law and the laws of Hong Kong.

“They openly advocated Hong Kong independence, insulted the country, endangered national unity, territorial integrity and national security,” Liao says. “The Standing Committee deemed there was a need to interpret the Basic Law to address the qualifications of these people.”

Liao says the interpretation stated that taking the oath to uphold the Basic Law and pledge allegiance to the special administrative region was the legal requirement for the public offices listed in Article 104 of the Basic Law.

9.54am – A note on the format and conduct of oath-takers

Legislative Affairs Commission vice-chairman Zhang Rongshun offers an explanation of the ruling, saying it is for reference and not binding.

Regarding point 2c of the ruling, Zhang says if an oath-taker deliberately “blasphemes” the oath taking process and ceremony by certain conduct, language, dress and props, or if he or she deliberately alters or contorts the oath or does not read it word for word, the oath will be deemed invalid and the person will be disqualified immediately.

If the person inadvertently fails to fulfil the oath requirement, he or she can be allowed to swear again.

9.54am – Official text of ruling released

The interpretation of Article 104 of the Basic Law makes three points:

(1) Content of the oath

The passage in Article 104 “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,” is the “statutory content” of the Legco oath.

It is also the “statutory requirement and condition” for people to take public office stated in that article, including lawmakers.

(2) Definition of “in accordance with law”

a) Taking the oath is a statutory condition and mandatory procedure for people to assume public office.

If one has not taken a valid oath accepted by law, or if one declines to swear in, he or she cannot assume office, and cannot exercise the duties and enjoy the privileges of public office.

b) The oath-taking must fulfil the statutory requirements in format and content. The person taking the oath should take it sincerely and solemnly and must accurately, completely and solemnly read out phrases such as “uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China” and “bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China” as stated in the statutory oath.

c) If the oath-taker refuses to take the oath, he or she shall be disqualified from assuming public office. One is deemed to have refused to take the oath – and subsequently have his or her oath invalidated – if he or she deliberately reads out an oath different from the statutory oath or does it in an insincere or frivolous manner.

d) The oath administrator has the duty to confirm the oath taking is carried out legally and that the oath complies with this interpretation and Hong Kong law.

Any oath that does not satisfy the above interpretation should be confirmed as an “invalid” oath. Retaking the oath is forbidden.

(3) Consequences of breach

Those who make a “false oath” or engage themselves in acts that violate the oath after taking it will bear legal responsibility.

9.37am – Interpretation as valid as Basic Law

The spokesman adds that interpretation of the Basic Law by the NPCSC enjoys the same legal status as the Basic Law itself. He says the interpretation by the NPCSC must be implemented thoroughly.

“[Beijing] will absolutely neither permit anyone advocating secession in Hong Kong nor allow any pro-independence activists to enter a government institution,” the spokesman said.

Four arrested after violence at thousands-strong rally over Beijing’s review of Basic Law

The central government believes different sectors in Hong Kong will now understand the harmfulness of “Hong Kong independence,” he says, and cherish and maintain the stability of the city. This includes accurately implementing the principle of “one country, two systems”, the Basic Law, as well as upholding territorial integrity and national safety, he adds.

9.36am – ‘Determination and will against Hong Kong independence’

The Standing Committee has clarified the definition and requirements of “swear in accordance with the law” in Article 104 of the Basic Law, a spokesman for the Hong Kong and Macau Affairs Office said in Beijing according to Xinhua.

“The Standing Committee’s explanation underlines the central government’s firm determination and will against Hong Kong independence, and upholds the authority of the Basic Law and the rule of law”.

The interpretation has addressed the “common wish” of the people of Hong Kong and the mainland, and is “totally necessary” and comes at a good time, he added.

9.28am – Basic Law Committee chairman to explain

Basic Law Committee chairman Li Fei will take centre stage as 10 officials attend a press conference to answer questions on the interpretation as well as address amendments to the nation’s education, Internet and publication policies.

The NPCSC’s legislative affairs committee deputy director Xu Anbiao is among the officials.

The press conference is being held in the Taiwan Room of the Great Hall of the People. At the room’s entrance, a board inscribed with carvings reads: “Taiwan has been China’s sacred territory since ancient times.”

It was unclear whether this room was deliberately picked because the interpretation was expected to touch on territorial integrity.

9.16am – Ruling passes

The National People’s Congress Standing Committee has unanimously passed its interpretation of Article 104 of the Basic Law, Xinhua reported. Details of the interpretation to follow.


Context for Beijing’s ruling

Beijing’s top legislative body approved an intervention into Hong Kong’s oath-taking controversy on Monday morning. It is expected to outline oath-taking rules and assert that non-compliance means disqualification.

Anticipation over the ruling has reached a fever pitch in Hong Kong following overnight clashes outside the central government’s liaison office in the city. Four people were arrested, and two officers were injured. Police used batons and pepper spray as protesters closed in on the office.

Watch: Police chase protesters with batons

The National People’s Congress Standing Committee’s ruling will come in the form of an interpretation of Article 104 of the Basic Law, Hong Kong’s mini-constitution. The NPC’s Basic Law Committee chairman Li Fei or his deputy Zhang Rongshun was expected to answer questions at a press conference after a vote on the document.

Top National People’s Congress body unites on need for interpretation on Hong Kong oaths

Article 104 states that when lawmakers take office, they must swear allegiance to Hong Kong as part of China. There was little controversy regarding the article in the past, but Beijing decided to “clarify” it after two pro-independence lawmakers in Hong Kong, Sixtus Baggio Leung Chung-hang and Yau Wai-ching, pledged allegiance to a “Hong Kong nation” and were accused of using derogatory language when referring to China when they were being sworn into office last month. The duo’s oaths were invalidated.

Watch: Hong Kong localists trying to retake their oaths on Wednesday

While the top legislative body’s interpretative power is rooted in the Chinese constitution and the Basic Law, the exercise of such power is a highly sensitive issue in Hong Kong.

Since the 1997 handover, the Hong Kong government and Court of Final Appeal has rarely asked for interpretations. This will be the fifth time the NPCSC interprets the Basic Law, the second time it has initiated such a move, and the first time an interpretation attempts to pre-empt a court case already in progress.

Beijing’s draft ruling on oath-taking for Hong Kong legislators ‘so detailed it amounts to a new law’

The Hong Kong court deliberating the oath case has yet to render its judgment after hearing arguments in which the government is seeking to disqualify Leung and Yau. The city’s legal sector, including Bar Association chairwoman Winnie Tam Wan-chi, had argued that Beijing’s intervention could hinder the city’s judicial independence and rule of law.

Hong Kong’s lawyers and barristers are to stage a “silent march” from Admiralty to Central on Tuesday to protest against the interpretation, while thousands of residents, university students and activists took to the streets on Sunday to oppose Beijing’s intervention.

Subject to interpretation: charting the history of Hong Kong’s Basic Law

However, Basic Law Committee member Maria Tam Wai-chu claimed that if mainland Chinese were to stage a rally in support of Beijing’s move, its “turnout would be bigger than” that of Hong Kong’s protest on Sunday.

A front-page commentary in the overseas edition of state-run publication People’s Daily on Saturday described Beijing’s intervention as “timely”, asserting the lawmakers who insulted the country had endangered national unity and territorial integrity.