Can Beijing’s power to interpret Hong Kong’s Basic Law ever be questioned?

Cliff Buddle says in light of the Court of Final Appeal’s recent refusal to allow two lawmakers disqualified for improper oath-taking to even make their case before the top court, it is worth revisiting its stirring first judgment involving interpretation of the Basic Law, in 1999

PUBLISHED : Wednesday, 11 October, 2017, 5:49pm
UPDATED : Wednesday, 11 October, 2017, 7:31pm

The booing of the national anthem at football matches, the posting of pro-independence banners at universities and the provocative remarks made by some lawmakers when taking their oaths are all symptoms of the same problem. There are, no doubt, complex reasons for these various expressions of opposition to the central government in Hong Kong since the Occupy pro-democracy protests in 2014. But frustration with the status quo and a perception that Hong Kong’s autonomy is being eroded is one of the key factors driving discontent.

The direction which the “one country, two systems” arrangement seems to be taking, with more intervention from Beijing, is causing discomfort, and not only among those inclined to resort to extreme actions. This explains the strong response to the jailing of student leaders in August for an unlawful protest, with claims from some that political motives lay behind the judgment.

There is, understandably, much concern that the Hong Kong judiciary should remain independent. It is the most autonomous institution under the constitutional framework put in place by the Basic Law. We rely on our judges to protect our rights and uphold the rule of law, core elements of the city’s separate system. In the absence of a democratically elected government and no independent body to rule on constitutional disputes between Hong Kong and the central government, the judiciary plays a vital role.

Hong Kong’s legal system is separate from that which exists on the mainland. But the two meet when there is a need for an interpretation of the Basic Law. The power of the National People’s Congress to issue interpretations which bind the courts provides Beijing with a means of asserting its power in Hong Kong. The question of whether there are any limits on that power is, therefore, an important one.

Eight days after the jailing of the student leaders, the Court of Final Appeal rejected a bid by lawmakers disqualified for improper oath-taking to secure a final appeal before the top court. The decision did not attract as much attention, but perhaps tells us more about the nature of the “one country, two systems” concept we have today.

The three judges on the court’s appeal committee refused to entertain any notion that Beijing’s interpretation of the Basic Law could be questioned. They said issues raised by the ousted lawmakers concerning the validity of the interpretation, which was issued in November last year, had already been settled in earlier decisions by the Court of Final Appeal.

Hong Kong will pay a heavy price for yet another Basic Law interpretation

Lawmakers Sixtus Baggio Leung Chung-hang and Yau Wai-ching had asked whether Beijing’s decision was an interpretation of the Basic Law, or really an interpretation of a local law, in this case the Oaths and Declarations Ordinance. Was it, in effect, an amendment of the Basic Law, and therefore subject to different procedures, rather than an interpretation? Could it be applied retro­spectively? The judges dismissed these questions, referring to “basic propositions”, that is, principles established in earlier cases. They said the Standing Committee’s power to interpret the Basic Law is unqualified, can be used to clarify and supplement laws, works retrospectively and is binding on Hong Kong’s courts.

Put simply, the Standing Committee can interpret any part of the Basic Law at any time and in any way it likes. And when it does so, the courts must follow that interpretation.

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

The roots of the “basic propositions” mentioned by the court lie in the turbulent events of 1999. A reading of the court’s first judgment involving interpretation of the Basic Law, in January that year, provides a very different view of how “one country, two systems” might have worked. From the perspective of 2017, after all that has happened, that judgment was quite breathtaking. But it reflected the way many Hong Kong people saw the arrangements at the time.

In the 1999 case, concerning the question of who qualifies for the right to live in Hong Kong, the court stated that it had the power to strike out acts of the NPC and its Standing Committee if they breached the Basic Law. In a famous passage of the judgment, it said: “In our view, the courts of [Hong Kong] do have this jurisdiction and indeed the duty to declare invalidity if inconsistency is found. It is right that we should take this opportunity of stating so unequivocally.”

Put simply, the Standing Committee can interpret any part of the Basic Law at any time and in any way it likes

The court noted that the Hong Kong government effectively accepted this position. Under this view of Hong Kong’s autonomy, Beijing has authorised Hong Kong’s courts to be the final arbiters of whether an act or law is constitutional, when deciding cases that fall within the city’s jurisdiction.

Imagine if this judgment had been allowed to stand. It suggested that interpretations by the Standing Committee would not be delivered unless the court requested them. Such requests were likely to have been rare. There has been only one since the handover.

The ability of the courts to step in and ensure that actions of the central government complied with the Basic Law, applying familiar common law principles, would have provided Hong Kong people with reassurance about maintaining the city’s high degree of autonomy. It might have resulted in Hong Kong retaining much greater control over its democratic development. It was an interpretation by Beijing in 2004, without any request from Hong Kong, that put the Standing Committee firmly in control of that process and led to restrictions being imposed on electoral reform.

Theposition put forward by the court in January 1999is, however, difficult to reconcile with China’s constitutional framework, where the NPC is the highest organ of state power and its Standing Committee has wide-ranging powers to interpret Basic Laws. In June 1999, following a strong rebuke from Beijing, the court’s judgment was effectively overturned by the Standing Committee’s first interpretation of the Basic Law.

In December that year, the top court accepted that the power of the Standing Committee to issue interpretations of the Basic Law is unlimited, and that they must be followed by the city’s judges. The “basic propositions” referred to by the court in the recent case of the lawmakers were established.

Basic Law oath-taking interpretation a major achievement, National People’s Congress head says

But questions about the nature of Hong Kong’s autonomy and the role that might be played by the courts remain. Will the Court of Final Appeal ever be willing to revisit the question of whether there are restrictions on what the Standing Committee can do in an interpretation? What might it take to prompt the judges to embark on such a sensitive exercise? An interpretation which flagrantly breaches human rights protected by the Basic Law, or one which dramatically reduces Hong Kong’s autonomy?

Hopefully, restraint will be exercised by the Standing Committee and such situations will not arise. But with the city remaining politically divided and sensitive issues likely to end up in the courts, it may be that the judges will not be able to avoid reconsidering questions relating to Standing Committee interpretations.

Cliff Buddle is the Post’s editor of special projects