Posted:  Feb. 16, 2017

 

Everyone is always thinking in terms of Hong Kong’s struggle to maintain its identity and define an autonomous political future given the constaints of its Beijing-drafted Basic Law constitution.

But there is another way to consider those constraints, namely, from the perspective of the people who drafted them in the 1980s.  The exercise should be attempted … if for no other reason than to try and anticipate how long the current stalemate between Beijing and Hong Kong’s democracy movement can continue before Beijing’s official patience runs out.

Because if Beijing’s November 7 interpretation of the Basic Law’s Article 104 on oath-taking is any indication, that patience is now running thin.

Picking up where this exercise left off last year (Mar. 31, 2016 post), it’s almost possible to sympathize with the challenge Beijing created for itself when Basic Law drafters wrote so many promises into that document. The purpose then was to quiet nerves before Hong Kong’s 1997 return to Chinese rule.

Now, 20 years later, it must be a real strain for Beijing decision-makers to curb their instincts and try to remain within the confines of that same Basic Law since they’re accustomed to governing in a very different way.

China’s political system emerged unscathed from the traumas of the 1980s and 1990s. It didn’t go the way of European communism or even undergo significant moderation. Political change has yet to follow economics. That means the old-fashioned revolutionary communist conventions of unitary party rule remain firmly entrenched.

Yet decision-makers must now work across the 1997 divide to prescribe for a city where at least half the politically active population continues to resist such party-line mainland-style impositions.   It follows that whatever Beijing does produces some antithetical Hong Kong backlash.

Mainland-style “hard power” instincts have so far been kept in check … but they’re being absorbed by a Basic Law that seems open to ever more hardline mainland-style interpretations.

BASIC LAW STRESS TESTS

Consider past events. By all accounts, Beijing was taken off guard when half a million people marched in 2003 against the Hong Kong government’s attempt to do its Basic Law duty by passing national security legislation as mandated by Article 23.  A high-pitched public Basic Law study session followed in early 2004 with legal authorities arriving from Beijing to admonish Hong Kong on Basic Law principles.

Soon after the experts left town came a decision from Beijing aimed at tightening up on the Basic Law’s vague promises about universal suffrage elections. Beijing’s specific approval for all such reform designs was made mandatory in 2004. Not until 2007 did Beijing specify a timeline for universal suffrage reforms, and these were not to begin until 2017 despite the Basic Law’s vague opening for any time after 2007.

Buying time, presumably to allow for memories of 2003 to fade while Hong Kong became more familiar with Basic Law logic.

But memories did not fade, especially after the Hong Kong government tried to introduce a national patriotic political education curriculum for all students in 2012. Young people used the years to learn more about elections in general and mainland-style promises in particular.   Still, Beijing’s delaying tactics didn’t push the Basic Law’s promises and constraints too far out of shape.

Neither did the biggest upsurge of dissent since 2003. Hong Kong’s 2014 Occupy Central/Umbrella Movement became a 79-day blockade of the city’s major thoroughfares. Contrary to many predictions … inspired by memories of Beijing, Tiananmen Square, 1989 … the People’s Liberation Army garrison headquartered just adjacent to the main Hong Kong Island protest site was not called out. The protests’ momentum was allowed to wind down more or less on its own.

Consider also Beijing’s August 31, 2014 hardline decision on electoral reform that triggered the protest. Beijing refused to modify even a single clause of that decision. Yet Hong Kong’s legislative veto process was allowed to play out on its own.

But then consider the current oath-taking saga provoked by newly-elected Legislative Councilors who modified their oaths during the swearing-in ceremony on October 12. A total of 15 legislators-elect were actually at fault, according to the headcount by Beijing’s Hong Kong liaison office. They improvised the oath proportional to their degree of disaffection with the increasing mainland-style impositions and the disaffection now contains ideas about independence.

For Beijing, independence marks the red line that must not be crossed. The Basic Law has consequently been stretched to its limits … with Hong Kong’s independent judiciary declaring itself duty-bound to obey. Lost in the flurry of court judgements is any mention of the Basic Law’s promises and guarantees for Hong Kong’s autonomy.

OATH-TAKING ON APPEAL

Beijing’s response to the oath-taking affront was the tough fast-track November 7 interpretation elaborating on the Basic Law’s Article 104 (Nov. 30, 2016 post).    Unlike the original, the new version of Article 104 decrees the style and manner of oath-taking. No second chances allowed, with allegiance pledged not just to Hong Kong but to the national government. And any oath-taker who makes a false oath or who “after taking the oath, engages in conduct in breach of the oath” shall bear legal responsibility. *

This last is the most draconian aspect given how “legal responsibility” is being implemented. And the most significant aspect of implementation is the built-in retroactive principle, which only became fully apparent after disqualified legislators began appealing to the courts for redress.

Beijing’s aim according to the ongoing drumbeat in its media outlets here is to squelch all ideas about independence, self-determination, or any other “separatist” inclinations that have sprung up to resist Beijing’s impositions.

Hence the Hong Kong government is now seeking to disqualify and unseat four additional newly-elected legislators. As for the first two whose oaths were the most offensive, their appeals are all going against them.

The two are: Sixtus Baggio LEUNG Chung-hang 【梁頌恆】, elected from New Territories East, and Yau Wai-ching 【游蕙 禎】from Kowloon West. Both are members of the new post-Occupy political group Youngspiration 【青年新政】   (Nov. 3, 2016 post ).

The first judge to rule said the two had disqualified themselves by mangling their oaths and must vacate their Legislative Council seats forthwith (case: HCAL 185/2016).  But he made a point of noting that his decision would have been the same, based on Hong Kong law and precedent alone, even without Beijing’s interpretation that had been handed down a few days before (Nov. 30, 2016 post).

The Court of First Instance judgement was issued on November 15, Beijing’s interpretation on November 7.   Later court rulings took it from there.

A Court of Appeal ruling on November 30 (CACV 224/2016) upheld the November 15 judgement.  During oral arguments, one of the appeal judges admonished a defense lawyer for attempting an argument that presumed to suggest an alternative, calling it “arrogant and ignorant” (SCMP, Nov. 25).

But the most clear-cut putdown of the defense arguments came in the January 16 appeal court decision from the same three-judge panel that had ruled on Novebmer 30.**

They dispensed with a request for permission to move the Leung-Yau case on to Hong Kong’s court of last resort, that is, the Court of Final Appeal.

The judges gave no quarter.  They categorically rejected all arguments,  in effect removing the most basic safeguards the Basic Law has been thought to contain. Hong Kong judges accept Beijing’s authority even to the point of disregarding Hong Kong’s own common law tradition if Beijing so directs.

The three-judge panel concluded that despite the lawyers’ best efforts, their arguments had “failed to pass the threshold” meriting permission to proceed on to Hong Kong’s Court of Final Appeal.  In their January 16 written judgement, the panel explained why all the arguments were without merit.

All were essentially being argued on the basis of Hong Kong’s common law principles to which the mainland system does not adhere. Hence when Beijing issues an interpretation meant for implementation in Hong Kong, it must be implemented in Hong Kong according to the principles obtaining in the mainland system, not those of Hong Kong.

Dismissing the defense suggestion that Beijing’s November 7 interpretation was actually an amendment in substance masquerading as an interpretation because it added so many extras to the original Basic Law Article 104 on oath-taking, the judges ruled that Hong Kong as a region subject to the national constitution does not have the right to second-guess Beijing on what is an amendment and what is only an interpretation.  

Therefore all the procedural niceties spelled out in Hong Kong’s Basic Law Article 159 to safeguard the addition of amendments need not be applied to a formal interpretation by the Standing Committee of the National People’s Congress (NPC).

Under the mainland system, explained the panel trying to be helpful, the interpretation given by the Standing Committee in Beijing is actually a legislative interpretation. As such it can clarify but also legislate, that is, supplement laws following mainland legal practice. Hence the contention that Beijing’s November 7 interpretation reads like a supplement to the Basic Law’s Article 104 on oath-taking and not just an explanation, does not signify.

That also means the interpretation is retroactive in nature, following mainland practice. The interpretation must therefore be treated the same as if it had been written into the law originally. In other words, it is as if the November 7 interpretation has been the law since July 1, 1997 when the Basic Law came into effect. The interpretation “declared what the law has always been.”

Hong Kong’s common law principles mean laws are not applied retroactively to anything that occurred before the law went into effect.

Mainland civil law principles as applied by the party-led mainland government apply here as elsewhere in China if Beijing chooses to say so. This is regardless of the fact that Hong Kong courts otherwise, noted the panel, “apply the common law principles in interpreting the Basic Law”!

In response to the contention that Hong Kong courts have both the right and the duty to question any act by the NPC Standing Committee, the judges declared that “the courts in Hong Kong cannot question the authority of the NPC … to do any act which is in accordance with the provisions of the Basic Law and the procedure therein.”

All defense arguments were threfore deemed unarguable.  Without merit.  Permission to proceed denied.

It follows that Hong Kong’s independent judiciary cannot stand as a bulwark against mainland interference. The Basic Law means whatever Beijing says it means and Hong Kong courts, say Hong Kong’s judges, are bound to obey. Ultimately, there are no safeguards other than those Beijing allows.

Leung and Yau nevertheless have not quite reached the end of the line.  Despite the panel’s January 16 judgement against them, they can apply directly to the Court of Final Appeal for permission to argue their case again and are planning to try their luck one last time.

* http://www.chinadailyasia.com/chinafocus/2016-11/07/content_15522280.html

** http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=107632

 

UPDATE, March 17:  The Court of Final Appeal has agreed to hear the case.  The court date is August 25.

 

Posted by Suzanne Pepper on February 16, 2017

hkfocus 2017@gmail.com

 

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