Basic Law Interpretation Raises Specter of Article 23

In a widely anticipated move, the National People’s Congress Standing Committee issued an interpretation of Article 104 of Hong Kong’s Basic Law, stating that when taking office, public officials, “must take the oath sincerely and solemnly…the content of which includes ‘…bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.'” Beijing’s move was a response to the actions of two newly elected Legislative Council members, Yau Wai-ching and Sixtus “Baggio” Leung, who altered the words of the oath by using a derogatory name for China and were barred from taking office at their swearing-in ceremony in October. According to the NPC interpretation, Yau and Leung will not be allowed to retake their oaths; the move will in effect “bar all pro-independence advocates in Hong Kong from assuming public office,” according to the official Global Times. The ruling is seen by many as an unprecedented move that threatens Hong Kong’s judiciary independence under the “one country, two systems” governing framework that has been in place since China took over the territory from Britain in 1997. Beijing’s interpretation preempts a ruling from Hong Kong’s High Court, which is currently hearing the case. From Camila Domonoske at NPR:

On Monday, a Chinese legislative panel issued a ruling that would prevent the two from retaking their oaths. The panel further said that anyone who advocates for Hong Kong’s independence is disqualified from election and should be under legal investigation, according to the AP.

The Beijing-backed chief executive of Hong Kong says his government will fully implement the decision against Leung and Yau, the wire service reports.

“Beijing’s decision is just the second time since China took over sovereignty of Hong Kong in 1997 that China has intervened in the city’s legislative affairs without being asked to do so,” Rob says.

“The drastic action to bar the two democratically elected officials for what many considered to be a childish matter has prompted fears in Hong Kong that further attempts at autonomy will be severely punished,” he notes. [Source]

At The New York Times, Michael Forsythe reports that this interpretation is in fact the first time Beijing has interfered in legislative affairs without being asked to do so by the Hong Kong government. (Read more about the history of Beijing’s interpretations of Hong Kong’s Basic Law, from 1999 to the present day, via Quartz.) He also notes that the interpretation adds ambiguity to the existing law, which may inject a degree of arbitrariness to its future implementation:

Monday’s ruling breaks new ground because it is the first time that Beijing has acted in a pending court case without a request by the Hong Kong government or judiciary, and because it appears to establish a mechanism for the authorities to block critics of Communist rule from taking elected office or even getting their names on ballots.

Some scholars said the decision went beyond interpreting the charter and amounted to rewriting the local statute governing how officials are to be sworn in. It requires lawmakers to read their oaths “completely and solemnly,” exactly as written, and orders those who administer oaths to disqualify lawmakers who alter or deliver the words in an “insincere or undignified manner,” barring them from office without another chance to be sworn in.

The decision also says lawmakers will be held liable if they violate their oaths, but it provides no guidance on who has the power to determine whether a lawmaker is in breach or what the punishment should be. The fear is that this will inject a degree of arbitrariness into a system that is based on rules underpinned by centuries of precedent under British common law.

“Whether it would affect my seat is secondary,” Nathan Law, 23, a new member of the Legislative Council who advocates greater self-determination for Hong Kong, said of the ruling by Beijing. “What’s most important is that the interpretation is vesting so much power in a person to decide whether someone is sincere and allegiant enough to take office, and there is no checks-and-balance against that person.” [Source]

In a statement issued after the interpretation, the NPC Standing Committee called Yau and Leung’s actions a “threat to ,” according to a report from Reuters, while the Global Times called the lawmakers “extremists”:

The standing committee of China’s rubberstamp legislature, the national people’s congress, said in a statement that Beijing could not afford to do nothing in the face of challenges in Hong Kong to China’s authority, the official Xinhua news agency reported late on Saturday.

The dispute in Hong Kong centres on a provocative display of anti-China sentiment by two pro-independence MPs, Sixtus Leung and Yau Wai-ching, at their swearing-in ceremony last month.

The legislative panel said the pair’s words and actions “posed a grave threat to national sovereignty and security”, Xinhua said.

If such a situation were to persist, the committee said, it would hurt the interests of Hong Kong’s residents and the country’s progress. “The central government cannot sit idly and do nothing,” it said. [Source]

Furthermore, Basic Law Committee Chair Li Fei has equated “national self-determination”the goal of some political groups in Hong Kong including Yau and Leung’s Youngspiration–with independence, which has raised concerns about how Beijing will handle localist activism and national security issues in the territory. From Ellie Ng at Hong Kong Free Press:

Li said that concepts such as national self-determination and the Hong Kong nation are “essentially” the same as Hong Kong independence, which would contravene the Basic Law which states that Hong Kong is an “inalienable” part of China. It would also damage the territory’s rule of law, social order and economy, he said.

Li added that pledging loyalty to Hong Kong and not China practically means support for Hong Kong independence.

[…] Activist Joshua Wong of the Demosistō party said: “Democratic self-determination means allowing Hongkongers to decide the future of Hong Kong by democratic means. Today, the Chinese Communist Party characterised it as independence.”

“It looks like the day when Beijing equates anti-Article-23 [security law] and ‘end one-party rule’ with fueling pro-independence forces is not far away,” Wong said. [Source]

refers to a provision in the Basic Law, which requires the Hong Kong government to, “enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.” In 2003, plans to legislate Article 23 were met with widespread public protest, leading to the shelving of the plan. Chief Executive C.Y. Leung is now apparently considering revisiting the issue in the wake of the debate over Article 104. From Ilaria Maria Sala at Quartz:

Wasting no time, Leung, who is deeply unpopular, evoked the specter once again of the dreaded “Article 23” of the Basic Law on Monday, a proposed bill that has haunted Hong Kong citizens for nearly two decades. The vaguely worded provision has been robustly rejected by Hong Kongers in the past, over fears it could lead to draconian laws similar to those used in mainland China to crush dissent and imprison political activists.

Under the “One Country, Two Systems” framework, Hong Kong enjoys a much higher degree of free speech and political dissent than on the mainland or in neighboring Macau, another Special Administrative Region of China that already passed Article 23 in 2009.

On Monday, though, Leung hinted the time had come to revive that provision in the Basic Law, suggesting at a press conference the threat of Hong Kong independence now provides the perfect pretext. In response to a reporter’s question about the possibility of reviving Article 23, Leung said, “We have not seen anyone advocating independence in the past but now we see it. This indeed deserves our attention.” [Source]

Read more about Article 23 from the HKU Legal Scholarship Blog.

Some observers believe that Beijing’s efforts to equate the actions of members with threats to national security are aimed at silencing a broad spectrum of pro-democracy voices in Hong Kong. From Chun Han Wong and Josh China at The Wall Street Journal:

Some Hong Kong pro-democracy lawmakers and political scientists say Beijing’s ruling lumps together a broad spectrum of voices for greater autonomy under a pro-independence banner that’s characterized as a threat to China’s unity—adding to central government efforts to stifle dissent in the city.

Warnings about the separatism threat are “just a red herring,” said Willy Lam, an adjunct professor at the Chinese University of Hong Kong. “This is to justify draconian tactics against the broader pan-democracy coalition and squeeze the public sphere in Hong Kong…under the pretext of preserving national sovereignty.”

[…] “Beijing is now equating analytically distinct concepts” like self-determination and preservation of Hong Kong’s semiautonomy with calls for independence and threats to national security, Mr. Cheung said. Fears over Hong Kong independence are “being used as a pretext to entrench political control.” [Source]

Over the weekend, thousands of protesters gathered outside the Liaison Office of the Central People’s Government in Hong Kong to protest the interpretation, resulting in violence as police used pepper spray when some protesters tried to storm a police barricade. From TIME: