Rule of Law in Hong Kong

On China’s interpretation of Article 104 in the Hong Kong Basic Law

Under a backdrop of the Brexit Article 50 judiciary saga plus tomorrow’s polarising US election that determines the make up of the Senate and therefore the 9th Supreme Court justice (never mind the Clinton-Trump presidency), Hong Kong’s own judicial independence is being challenged.

In as little legal jargon as possible, Hong Kong’s rule of law is being ignored by the Standing Committee of the National People’s Congress (NPCSC). The article in question relates to the procedure for oath-taking (more specifically, a retake) and the NPCSC provided a ‘legal interpretation’ on the content, intent, nature, and method of oath-taking considered valid. A China Liaison Office spokesperson added further that the HK Government cannot use ‘judicial independence’ as a reason to reject or condemn Beijing’s ‘lawful’ right to interpret the Basic Law (HK’s mini-constitution). (Detailed legal backdrop & analysis prior to this statement here)

It is important to note that:
1) HK’s Basic Law is distinct from the Chinese legal system
2) There is separation of powers (executive, legislature, judiciary) in HK
3) This case involves interference with the democratic process legally granted to the HK people by the Basic Law

In releasing this statement, the NPCSC fails to respect the right for HK’s judiciary to solve its own domestic legislative issue. By doing so, it is not strictly interpreting HK law but enacting Chinese national law into our mini-constitution. The HK Bar Association describes this interpretation as unnecessary and inappropriate. More importantly, it undermines 「一國兩制,港人治港, 高度自治」的決心, the spirit of “’One country two systems’, ‘HK’s self-governance’, and ‘high degree of autonomy’”.

Whilst politically charged, it is important (as was the Brexit case, a matter of process not politics) to distinguish between the disregard for HK’s judicial independence and the implications of this interpretation (2 localist, pro-independence candidates unable to retake their oath and the potential invalidation of other legislative councilors).

Beijing’s decision comes from a country where law is a subset of politics. This does not hold true for Hong Kong.

Perhaps this post comes as a surprise to everyone I spoke to today. I have kept my frustrations brief. I want to emphasise that my high levels of energy come from anger and the desire to stay angry. As anyone who’s been frustrated by injustice knows, anger takes energy and sadness takes time. I refuse to spend my hours longing when I could be marching, informing, and changing.