Hong Kong Basic Law

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

Former Basic Law Drafting Committee member slams move to pre-empt decision by Hong Kong court over oath-taking controversy

PUBLISHED : Sunday, 06 November, 2016, 7:27pm
UPDATED : Monday, 07 November, 2016, 3:20am

A pan-democratic legal heavyweight has accused Beijing of using the oath-taking saga as an excuse to take away the power of the city’s judicial and legislative branches.

Martin Lee Chu-ming SC, who once helped draft the Basic Law in the late 1980s, also said it would be problematic if Beijing granted the legislature’s secretary general the power to invalidate lawmakers’ oaths by interpreting the city’s mini-constitution.

The Standing Committee of the National People’s Congress (NPCSC) is set to endorse a draft interpretation of Article 104 of the Basic Law, which relates to the oaths taken by lawmakers, in a bid to disqualify two pro-independence lawmakers who used derogatory language referencing China when they took their oaths last month. The draft interpretation is likely to prescribe the format and conduct for lawmakers who are swearing in and the consequences of non-compliance.

Lee criticised Beijing’s attempt to pre-empt a decision by the Hong Kong court, which has still to deliver its judgment after hearing arguments in the case where the government sought to disqualify Sixtus Baggio Leung Chung-hang and Yau Wai-ching last week.

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“[With its interpretation], the NPCSC is trying to take away the [local] courts’ right to handle such important cases in future,” Lee said, adding that the courts would then have no choice but to rule based on the interpretation.

The senior counsel also accused Beijing of taking away the power of the Legislative Council by unnecessarily intervening in the matter.

“Article 104 states that the lawmakers must take the oath in accordance with the law, which we already have at the local level. We can amend it if it is not clear enough,” he said.

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Meanwhile, Lee also said it would make no sense for Beijing to confirm that the Legco secretary general, who is charged with administrative issues, had the power to invalidate oaths through the interpretation.

“He is just a clerk,” Lee said. “I’m sure the post will be taken by a Communist Party member in future.”

The founding chairman of the Democratic Party was making these arguments as he crossed swords with Tam Yiu-chung, a pro-establishment veteran, on RTHK’s City Forum on Sunday.

Former lawmaker Tam, who is from the Democratic Alliance for the Betterment and Progress of Hong Kong, defended Beijing’s move as “timely and necessary”. Tam, who was a member of the Basic Law Drafting Committee alongside Lee, said the clarification “would benefit Hong Kong society and help stamp out pro-independence sentiments”.

When asked if the draft ruling by Beijing amounted to a new local law, he argued the Basic Law’s articles stated only fundamental principles and that the NPCSC had the right to clearly explain legislative intent.

Veteran China watcher Johnny Lau Yui-siu on Sunday quoted the late Li Hou, secretary general of the Basic Law Drafting Committee, as saying that it was Beijing’s intention to draft the city’s mini-constitution in broad terms to enable the central government to interpret the articles in future.