The title is confusing. Better to call it “the mainland-ization of a common-law principle.” The subject deserves that title because it refers to the unusual legal process whereby six newly-elected members of Hong Kong’s legislature have been disqualified from office because of something they did after their election, but before a law was passed by the central government in Beijing. The law was then used by Hong Kong’s government and courts to disqualify the elected legislators for what they had done before!
The disqualification thus violates the common law principle whereby a person should not be held responsible, retroactively, for acts that were not forbidden at the time they were committed.
The six disqualified legislators-elect should not be confused with the more widely publicized case of the three political activists who were recently jailed after being re-sentenced on grounds the original sentences were too light. In this case, guidelines were tightened after the first trial, allowing the three to be re-sentenced and dubbed by the international media as Hong Kong’s first “political prisoners.”
The three are Joshua Wong, Nathan Law, and Alex Chow whose actions precipitated Hong Kong’s 79-day Occupy street blockades in 2014. The new guidelines sought custodial sentences of sufficient duration (in excess of three months) to mandate a five-year hiatus in their political careers and a three-judge panel acquiesced without dissent. Their verdict was handed down on August 17, 2017. On re-sentencing the three activists were given six-to-eight-month sentences. (1)
But whatever might have gone on behind the scenes between authorities in Beijing and Hong Kong, Beijing had no overt hand in the re-sentencing exercise. Hong Kong government officials and legal authorities are all defensively insisting that procedures were followed strictly by the book according to Hong Kong legal practice, which no one would dispute … if only the Justice Department’s motive in re-opening the case did not appear to be so clearly political (Aug. 24 post).
By contrast, the central government had a direct role in the disqualifications of the six Legislative Councilors who were elected last September. Beijing made the decision. Hong Kong had no choice but to implement it. Or in the words of the judges, they are “bound” to obey. Such is the relationship between the central government and its Hong Kong Special Administrative Region (SAR). It’s a feature of the unique “one-country, two-systems” arrangement designed to govern Hong Kong after it was transferred from British colonial rule to Chinese sovereignty in 1997.
Hong Kong’s legal system is based on British common-law principles. The judiciary is independent. China’s Communist Party-led judicial system is obviously very different and by definition not independent.
The “two-systems” arrangement allowed Hong Kong to retain its legal system intact, but made it subordinate to the overarching authority of the mainland system. And one of the ways whereby Beijing exercises that authority is through its right to issue Interpretations of Hong Kong’s post-1997 Basic Law constitution. This was drafted to Beijing’s specifications in the late 1980s and promulgated in 1990, to serve as Hong Kong’s constitution for the first 50 years after the colony reverted to Chinese sovereignty in 1997.
The case of the six disqualified legislators illustrates just how uncertain and disruptive the arrangement can be when something happens that brings the two systems into direct contact. With no buffer or source of mediation between the mainland and Hong Kong judicial systems to soften the impact, Hong Kong’s independent legal authorities must improvise and adapt. This is transforming them into enforcers for China’s party-led system as and when their Beijing sovereign uses the law to advance its aims here, which is what has happened in the case of the six legislators.
Given the circumstances, Hong Kong’s legal authorities cannot be faulted for adapting as best they can. What they have neglected to do, however, is to explain the logic of their judgements in language the general public can understand much less accept as legitimate. Laws are public things that the public is expected to obey. But the public can hardly obey when it doesn’t know what the laws are. And the public is concluding that this is what the face of dictatorship looks like. The sovereign decrees. Hong Kong courts enforce.
“NO ONE KNEW”
The story began last year on October 12, during the Legislative Council’s swearing-in ceremony. Baggio Leung and Yau Wai-ching, two new candidates from the post-Occupy generation, wrote their own oaths. Leung was elected from New Territories East, Yau from Kowloon West. They swore allegiance to Hong Kong rather than to the central government of the People’s Republic, which they mocked in disrespectful and vulgar terms.
Several other legislators-elect took their oaths properly but interjected slogans and dissident statements of their own. This practice had been tolerated in the past as it initially was on October 12. Those who did so had no reason to suspect otherwise and they were in fact allowed to take their seats in the normal way.
The Hong Kong government initially referred the first two to the local courts arguing that they, Leung and Yau, had violated a local law on official oath-taking. But before a Hong Kong judge could rule, Beijing stepped in, on November 7, with an Interpretation of Hong Kong’s Basic Law, Article 104, on oath taking. The Interpretation was issued by the highest central government authority, the Standing Committee of the National People’s Congress (NPCSC). It mandated additional conditions including solemnity and sincerity in the taking of official oaths. (2)
Local judge Thomas Au nevertheless ruled in his November 15 judgement that he would have disqualified the defendants on the basis of the Hong Kong ordnance alone, even without Beijing’s Interpretation. (3)
In Hong Kong, the appeals process soon got underway for Leung and Yau. It has only just ended with a hearing before Hong Kong’s Court of Final Appeal on August 25.
Additionally, in late December last year, the Hong Kong government initiated proceedings against four other legislators. They had been sworn in on October 12 along with everyone else elected in September 2016. The four: Lau Siu-lai (Kowloon West); Nathan Law (HK Island); “Long Hair” Leung Kwok-hung (New Territories East); Edward Yiu (Functional Constituency).
The proceedings against the four were based on Beijing’s November 7 Interpretation. The Hong Kong government alleged that the improvisations of the four demonstrated a lack of proper solemnity and sincerity. Why those four were singled out is unclear since several others had also embellished their oaths in the same manner (Jan. 4, 2017 post).
At each step along the way, for all six defendants, their lawyers presented arguments based on the common law retrospective principle that people cannot be held accountable for actions undertaken before a law was passed forbidding them.
Asked why they had continued to make this argument as successive appeal judgements ruled against them, legal professionals working on the defense said because “no one knew” the retroactive principle would not be recognized by Hong Kong’s judges as a mitigating factor for the defendants.
So if even the legal professionals did not know for certain, how much less can the general public be expected to understand what seems to Hong Kongers like an arbitrary application of the law?
There are many reasons for such misunderstandings. Since the law is a public thing we can go first to that most common of contemporary publically available sources, Wikipedia. On this subject it says that “As interpretations by the NPCSC do not have retroactive effect, an interpretation of the Basic Law does not affect cases that have already been adjudicated.”
This would seem to be an appropriate reading of Hong Kong’s Basic Law, Article 158, on interpretations. Article 158 says that when the NPCSC makes an interpretation of the Basic Law, Hong Kong courts “shall follow the interpretation.” This is what binds them to do so. But Article 158 also says that “judgements previously rendered shall not be affected.”
In fact, it is not categorically correct to say, as many reports have done including mine, that mainland law is retroactive. Some laws are, some are not. If they are, they are supposed to say so. According to Article 84 of China’s Legislation Law, laws are not retroactive except for regulations “formulated especially for the purpose of better protecting the rights and interests of citizens … .” （4）
The NPCSC Interpretation of Basic Law Article 104 does not specify one way or the other, which presumably means it was not meant to be enforced retroactively.
“WHAT THE LAW HAS ALWAYS BEEN”
Yet when this question was raised on appeal for Baggio Leung and Yau Wai-ching, the January 16, 2017 judgement was emphatic. On the matter of retrospectivity: “The answer to this Question is beyond doubt: the Interpretation dates from 1 July 1997 when the Basic Law came into effect. It declared what the law has always been.”
For the authority on this conclusion, the judgement refers to the precedent set by an earlier case: Lau Kong Yung v Director of Immigration (1999). (5)
Next came the ruling that disqualified the four additional legislators who had taken their oaths properly but added embellishments. The Hong Kong government’s case against them had been lodged in December 2016. The judgement was handed down on July 14.
Why these four were singled out for selective punishment is a separate question. Other legislators-elect had also added embellishments despite taking the oath properly. But all had originally been sworn in and took their seats in the normal way.
This time the same Judge Thomas Au who had ruled in the first Hong Kong judgement of the oath-taking saga last November, did not add any caveats about local Hong Kong law. Nor did he address the question of retrospective application directly. He simply ruled as if Beijing’s November 7 Interpretation was what the law had always been. But he did note in another context that: “the Interpretation provides the true and proper meaning of BL104 and takes effect from 1 July 1997.”
Judge Au disqualified all four legislators and quashed the Legislative Council rulings that had originally allowed them to take their seats. Their defense counsels had gone into considerable detail on the likely political motive of the government in seeking their selective punishment. Judge Au’s responses to that argument were masterpieces of judicial obfuscation.
Defense council Martin Lee Chu-ming raised the retrospectivity principle obliquely by arguing that the four legislators had improvised their oaths on the expectation that they would at most be required to retake them, which some had been allowed to do, until Judge Au ruled summarily against them on July 14. Lee’s argument of legitimate expectations was dismissed on the ground “that an expectation is not legitimate or cannot be substantively enforced if the substantive enforcement would be contrary to law. “ (6)
The absolute last and final word came from Hong Kong’s Court of Final Appeal on August 25. A hearing had been allowed due to the public importance of the case, despite several denials of the right to continue appealing. Oral arguments were presented in open court on August 25; the verdict was announced within hours. All arguments were again declared to be without merit. The written judgement was handed down on September 1. (7)
On the question of retrospectivity, the judgement was again emphatic: An interpretation of the Basic Law issued by the NPCSC is binding on Hong Kong courts. “It declares what the law is and has always been since the coming into effect of the Basic Law on 1 July 1997.” The authority cited for this declaration is again the same Lau Kong Yung case precedent on immigration from 1999.
“In these circumstances,” continued the September 1 judgement, “unless this Court were to revisit these fundamental propositions of law, it is apparent that many of the questions sought to be raised by Leung and Yau as to the Interpretation have already been authoritatively determined by the Court. In our view, there is no warrant for revisiting these propositions and Leung and Yau’s contentions questioning their correctness are not reasonably arguable.”
Since the 1999 case was cited as the foundation stone precedent, and since the three Court of Final Appeal judges were not inclined to revisit the reasoning whereby the 1999 case should stand as the authority in the 2016/17 disqualification cases, a modest retrospective journey might help clarify matters.
Soon after reunification in 1997, there were several immigration cases related to the first Interpretation of Hong Kong’s Basic Law, in June 1999. This Interpretation concerned restrictions on the right-of-abode in Hong Kong for the mainland-born children of legal Hong Kong residents.
The 1999 Interpretation on immigration said only that as from the date of its promulgation, Hong Kong courts were bound by its provisions. It even specified that previous 1999 judgements were excepted. (8) The 1999 Interpretation was dated June 26 and it did not specify that it meant to decree or suggest what the law had always been dating back to July 1, 1997.
Lau Kong Yung v the Director of Immigration was the first case adjudicated after the June 26, 1999 Interpretation was promulgated. The judgement was handed down on Dec. 3, 1999. Yet despite the wording of the Interpretation that said Hong Kong courts were to be bound from the date of its promulgation, the Hong Kong court in Lau Kong Yung noted that “The Interpretation, being an interpretation of the relevant provisions, dates from 1, July 1997 when the Basic Law came into effect. It declared what the law has always been.” (9)
So the precedent for declaring that Beijing’s November 7, 2016 Interpretation is what the law has always been goes back a long way. But that still doesn’t explain where it came from in the first place. Is there some internal communication that Hong Kong’s Department of Justice is using as the authority for this reading of Beijing’s Basic Law Interpretations? Or have Hong Kong judges perhaps done a little creative adaptation, and adapted their familiar common law custom of citing precedents to create one of their own with the 1999 Lau Kong Yong case?
That would be ironic: using common law precedent to lock in a retrospective aspect that Beijing did not mandate. (SEE UPDATE NOTE BELOW)
In any event, if no one knew whether or not the retrospectivity principle would signify as a mitigating factor in the oath-taking saga, it doesn’t seem to be anyone’s fault except perhaps that of Hong Kong’s judiciary for not troubling to revisit the matter and present it more clearly to the concerned public.
(1) Aug. 17, 2017 judgement, case no: CAAR 4/2016:
(3) Nov. 15, 2016 judgement, case no. HCAL 185/2016:
(5) Jan. 16, 2017 judgement, case no. CACV 224/2016:
(6) July 14, 2017 judgement, case no. HCAL 223/2016: http://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=110350&QS=%2B&TP=JU
(7) Sept. 1, 2017 judgement, Ct. of Final Appeal, case no. FAMV 7,8,9,10 2017: http://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=111120&currpage=T
(8) 1999 interpretation: http://www.blis.gov.hk/blis_ind.nsf/CurAllEngDoc/77E7FBB936DE3D71482575EE000DF62E?OpenDocument
(9) Dec. 3, 1999 judgement, case no: FACV 10, 11/1999:
Posted by Suzanne Pepper on September 6, 2017
UPDATE NOTE, Nov. 2, 2017: This speculation is not so far-fetched after all. Hong Kong courts follow common law and the common law principle of non-retroactivity applies only to case law, that is, precedents created by court judgements in individual cases. But interpretations of legislation, that is, laws passed by legislatures, are supposed to be retroactive. Hong Kong’s Basic Law was enacted by the National People’s Congress in Beijing on April 4, 1990 and went into effect as of July 1, 1997. Hence the claim made by Hong Kong judges that Beijing’s November 7, 2016 Interpretation of Basic Law Article 104 on oath-taking “is what the law has always been.” It would have helped if someone had explained this principle.