Beijing’s Interpretation of HK Basic Law Draws Concern

Update (November 6, 9:00 pm PST): The National People’s Congress has issued an interpretation of Article 104 of the Basic Law saying that Hong Kong lawmakers must swear allegiance to Hong Kong as part of China. The move is expected to result in the barring of Yau Wai-ching and Sixtus Leung from office. Read live blogs on the decision from the South China Morning Post and Hong Kong Free Press.

Original Post:

The National People’s Congress Standing Committee has decided to issue an interpretation of Hong Kong law over the right of two Legislative Council representatives to serve in office after refusing to swear their allegiance to Beijing, as required under Article 104 of the Basic Law. The two newly elected lawmakers, Yau Wai-ching and Sixtus Leung, were elected in September but were not allowed to be sworn in in October after they altered the words of an oath declaring their loyalty to the “Hong Kong Special Administrative Region of the People’s Republic of China.” Since then, the Hong Kong government has filed a case with the High Court stating that Yau and Leung should not be allowed to join . The High Court has not yet issued a ruling, making this the first time that Beijing has volunteered to issue an interpretation of the law while a Hong Kong court is still hearing the case. Under the Basic Law, Beijing has the right to offer the final interpretation of Hong Kong law, but in the four previous cases, such a ruling came after the cases had been heard by the Court of Final Appeal, the territory’s highest court, and at the request of the Hong Kong government. At the South China Morning Post, Tony Cheung and Joyce Ng report on the announcement:

[Basic Law Committee member] Maria Tam Wai-chu told the media on Friday the leadership of the National People’s Congress would move to seek an interpretation of Article 104 of the Basic Law, the city’s mini-constitution, which says lawmakers must swear allegiance to Hong Kong as an alienable part of the People’s Republic of China.

Hong Kong government has not been told if Beijing will intervene to ban pro-independence lawmakers

Several Beijing-friendly politicians expect the ruling to cover other allegiance-related issues that have emerged from pro-independence thinking.

The decision brought a furious response from the pan-democratic and localist camps, with the legal sector planning a “silent march” on Tuesday, the day after the interpretation is set to be endorsed by the NPC Standing Committee.

Speaking in Beijing, NPC deputy Tam said: “This was not the Hong Kong ­government or the chief executive requesting the interpretation… It is an important issue involving national unity and territorial integrity, therefore [the NPC’s leadership] took the initiative and made the request.” [Source]

And from Kelvin Chan at AP:

Hong Kong’s government said Friday that it was informed by China’s central government in Beijing that members of the country’s top legislative panel, the Standing Committee of the National People’s Congress, will discuss interpreting an article in the city’s Basic Law constitution covering oaths taken by officials.

The move comes in response to a provocative display of anti-China sentiment by the two lawmakers, Sixtus Leung and Yau Wai-ching, at their swearing-in ceremony last month.

Beijing’s heavy-handed response could lead to the democratically elected Leung and Yau being disqualified from taking office. Such an outcome would be favorable to China’s Communist leaders, who are alarmed by the former British colony’s burgeoning independence movement, but is also likely to plunge their troubled relationship into fresh turmoil. [Source]

Emily Rauhala at the Washington Post reports on fears that Beijing’s move may threaten Hong Kong’s judicial independence:

Hong Kong’s government, which is loyal to Beijing, has asked a local court to consider whether Leung and Yau have the right to be sworn in — but that may not be the last word.

A Hong Kong official on Friday confirmed that China’s National People’s Congress will step in to issue an “interpretation” on the matter, news that will intensify fears that the city’s judicial independence is under threat.

Beijing, spooked by the rise of a small but vocal pro-independence camp, wants to “show Hong Kong who’s boss,” said Ho-fung Hung, an associate professor at Johns Hopkins University. “But if they can override decisions, that amounts to rule by edict.” [Source]

Kevin Lui at TIME also looks at further concerns that the interpretation could set a dangerous precedent:

The timing of the announcement and the surrounding circumstances raised many eyebrows, as the judicial review case was being handled by the territory’s High Court, instead of its Court of Final Appeal — Hong Kong’s highest court. In the four previous instances where the NPCSC had given an interpretation of the Basic Law, the relevant cases had all reached the Court of Final Appeal first.

“It seems that Beijing is already jumping the gun,” Anson Chan, the territory’s colonial-era Chief Secretary turned pro-democracy icon, tells TIME. “It’s a very damaging precedent, because it’s not like any of the previous interpretations.”

“The court has not handed down any judgment,” she adds, “so, in effect, what Beijing is now saying is that ‘we don’t care what the court says, we are handing you this interpretation’.” [Source]

For Hong Kong Free Press, Suzanne Pepper writes that the Chinese government’s efforts to squelch localist or pro-independence voices in Hong Kong may be backfiring by generating more public support for those ideas, as was made evident by the result of the September elections when Yau, Leung, and other young pro-independence candidates were voted into office:

For every big upsurge of political disharmony, as Hong Kongers have tried to push back against one mainland political intrusion after another, popular sentiment has not turned against the purveyors of dissent and opposition. On the contrary, public approval has grown.

The most recent episodes of defiance were the street blockades that disrupted city life for two months during the 2014 Occupy protests, and the Lunar New Year violence in Mong Kok earlier this year.

Afterward, the perpetrators and champions of those disruptive events were rewarded in local elections that by official reckoning were supposed to give effect to public disapproval. Voters did just the opposite.

During the recent Legislative Council election campaign, Hong Kong’s Chief Executive Leung Chun-ying and pro-Beijing politicians tried to rally the public with cries of “vote them out.” The reference was to all the pro-democracy Legislative Councillors who had defied him by vetoing his Beijing-designed political reform bill last year … and to all dissident trouble-makers and rioters everywhere. [Source]

Varsity Magazine reports that localist ideas are indeed spreading among youth in Hong Kong, even adolescents as young as 11:

In a survey of 350 people aged between 11 and 27, Varsity looked at young Hongkongers’ views and understanding of localism.

The survey found that close to 69 per cent of the respondents said they supported localist groups, which is higher than suggested in similar previous polls.

Francis Lee Lap-fung, a communications scholar at the Chinese University of Hong Kong (CUHK) is not surprised by the finding.

“In the previous territory-wide polls, localist groups might have an 8 to 9 per cent support rate. It can add up to 40 per cent if respondents are stratified from 18 to 30 years old; we can expect support rate rises with younger respondents,” Lee explains. [Source]

Meanwhile, a new report from PEN has shown that Chinese government interference and persecution of Hong Kong publishers over the past year has had a dramatic impact on the publishing industry in the territory. The detention of several publishers and booksellers who produced tabloid-style political books raised concerns in Hong Kong and globally about excessive interference by Beijing. From Michael Forsythe at the New York Times:

The 70-page report also shows how, despite the condemnation Beijing received internationally and in Hong Kong, its actions may have had the intended effect: The most prolific publisher of thinly sourced books about political intrigue and the sex lives of China’s leaders is out of business. Other book publishers, including those that sell well-sourced, authoritative volumes about Chinese politics, are finding it increasingly difficult to continue operating.

The lack of information about the disappearances, and what one returning bookseller said were forced confessions, have sowed fear in Hong Kong’s once-thriving publishing community. China’s government has never given an explanation as to why it took such extraordinary measures against only one of many publishers. Was it, the report asks, to prevent the publication of a particular book? Or was the aim to coerce the publishers into revealing their sources? Perhaps it was to obtain lists of customers? Or maybe it was to shut down the biggest publisher of such books?

“This constellation of theories, none mutually exclusive and none confirmed, has created an atmosphere of uncertainty,” the report said. “It is impossible for independent publishers who produce books critical of China’s rulers to know how not to cross the line and become the next targets because it is unclear where that line is drawn. The only sure response is to take no steps at all.” [Source]