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Legislative Council of Hong Kong

Lawyer who helped draft Basic Law says Beijing interpretation has destroyed ‘one country, two systems’

Former Democratic Party chief Martin Lee Chu-ming says intervention by China’s National People’s Congress amounts to an amendment of the law rather than an interpretation

PUBLISHED : Thursday, 17 November, 2016, 5:48pm
UPDATED : Thursday, 17 November, 2016, 5:48pm

A former member of the Basic Law Drafting Committee has said Beijing’s recent interpretation of Hong Kong’s mini-constitution destroyed the “one country, two systems” principle because it suggested key officials had to pledge allegiance to both China “and its Hong Kong Special Administrative Region”.

Martin Lee Chu-ming SC, a former Democratic Party chief, was referring to the National People’s Congress interpretation last week of the oath-taking provision in Article 104 of the Basic Law – an intervention prompted by the antics of two Hong Kong pro-independence lawmakers who spoiled their oaths of office last month.

The localist pair, Youngspiration’s Sixtus Baggio Leung Chung-hang and Yau Wai-ching, used insulting language to refer to China and advocated Hong Kong independence during their oaths. They were disqualified by the High Court on Tuesday and filed an appeal against the ruling on Thursday morning.

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Part of the interpretation reads: “The taking of the oath stipulated by Article 104 is a legal pledge (of allegiance) made by the public officers to the People’s Republic of China and its Hong Kong Special Administrative Region, and is legally binding.”

That is somewhat different however from the relevant section of the Basic Law, which states “principal officials and members of the Legislative Council ... must swear to uphold the Basic Law and swear allegiance to the Hong Kong Special Administrative Region”.

Lee said the insertion of the conjunction “and” and attributive adjective “its” between “People’s Republic of China” and “Hong Kong Special Administrative Region” suggested principal officials and lawmakers had to pledge allegiance to mainland constitutional law as well as the Basic Law, and this would have major consequences.

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He believed questions could be raised about several members of the legislature’s functional constituencies who hold dual nationality.

“If they have a United States or British passport, how are they pledging allegiance to the country? Chinese law does not recognise dual nationality,” Lee said on a radio programme. “Would you have to bear legal consequences?”

By adding the words, Lee said the NPC was effectively amending, not interpreting, the law.

“If ‘and its’ had been added to the oath after 1997, I might not have chosen to take it [to become a lawmaker],” he said.

“We are talking about one country, two systems – I pledge allegiance to this system, I can’t pledge allegiance to the Communist Party.”