Basic Law

Beijing needs mechanism for interpreting Hong Kong’s mini-constitution, Chinese legal expert says

Rao Geping says a law is needed as the principle, procedures and legal effect of the interpretation process remain unclear

PUBLISHED : Friday, 28 April, 2017, 3:47pm
UPDATED : Friday, 28 April, 2017, 11:34pm

A leading mainland constitutional scholar and adviser to Beijing has proposed that the central government should enact legislation to create a mechanism for interpretations of Hong Kong’s mini-constitution, the Basic Law.

The suggestion by Peking University’s Rao Geping, a key member of the Basic Law Committee under the National People’s Congress Standing Committee, deals with a highly sensitive issue for Hong Kong, where past interpretations have raised concerns about “interference” by Beijing.

At a legal seminar in Hong Kong on Friday, Rao spoke of the need to “standardise” such interpretations of the Basic Law.

“According to Article 158 of the Basic Law, the standing committee upholds the power [to interpret the mini-constitution] but the law does not stipulate clearly the mechanism, including the principle, the procedures, the legal effect and the relationship with the courts in Hong Kong,” Rao said.

He recommended that the NPC Standing Committee draft a law for the interpretation process, making it more transparent.

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In an article published in the pro-Beijing Bauhinia magazine this month, Rao went even further to suggest making interpretation a regular practice.

Civic Party chairman Alan Leong Kah-kit, a leading pan-democrat, welcomed Rao’s idea. Otherwise it was undesirable for Hong Kong courts to have no idea when and how Beijing would exert its political influence over them, he said.

“If there can be a set of objective rules and principles governing the power of Article 158, of course it is better,” Leong said.

Last year, the NPC Standing Committee issued an interpretation of Article 104 of the Basic Law to make it punishable by disqualification for lawmakers and public officials to distort their oaths.

That was just before a court in Hong Kong disqualified two newly elected pro-independence lawmakers for their anti-China antics during their swearing-in ceremony.

However, Leong said state leaders in Beijing were unlikely to adopt Rao’s suggestion as they would want to hold on to such powers for themselves.

His party colleague, legal sector lawmaker Dennis Kwok, disagreed on the need for an interpretation mechanism, arguing that Hong Kong’s top court was capable of making rulings without having to revert to Beijing.

“The Hong Kong Court of Final Appeal has issued the related legal principles and procedures in its past judgments ... It is the best way to build the principles through common law practices.” Kwok said.

Rao also urged Hong Kong to enact national security legislation under Article 23 of the Basic Law to tackle offences such as treason, sedition and secession.

“Hong Kong is a city of rule of law ... Hongkongers cannot ask for Article 45 [which deals with universal suffrage] to be enacted ... but reject enacting Article 23,” Rao argued.

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The national security law had been “demonised” by some, but the government should not delay the process any more, he said.

In 2003, the city’s government attempted to introduce the relevant legislation but was forced to shelve it due to overwhelming public opposition.

Also at Friday’s seminar, Wang Zhenmin, the legal chief at Beijing’s liaison office in Hong Kong, said the city, and not the mainland, should be the one to change and adapt to get on board the country’s development track.

“[China] has built up its system with blood and sweat over many years, sacrificing our brothers and sisters ... Our system is now gaining recognition worldwide, and we are not going to change because of the calls from Hong Kong,” Wang said.

He noted that the most serious critics of the country’s system were not from the United States and the European Union, but from certain sections of Hong Kong society.

“Hong Kong people should respect the country’s system and understand the reasons and logic behind it more,” Wang added.

Meanwhile, Chen Zuoer, a former deputy director of the Hong Kong and Macau Affairs Office, said at a public event in Beijing that “one country, two systems” had proved a success and was the best way to solve the Hong Kong problem peacefully.

Additional reporting by Joyce Ng