Jason Buhi on "What’s Happening in Hong Kong: The November 2016 Interpretation of the Hong Kong Basic Law in Context"

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"What caused approximately 2,000 of Hong Kong’s austere legal professionals to conduct a solemn “Silent March” from the High Court to the Court of Final Appeal on the evening of Tuesday, 8 November 2016?"

This is a question that is central to the issue of the authority, scope and context of the decison by Chinese state authorities to consider and then render an interpretation of the Hong Kong Basic Law in the midst of a string controversy within Hing Kong relating to the election and swearing in of elected officials. (Full text of Interpretation of Article 104 of HKSAR Basic Law).

It is also a question that touches on the interpretation of the Basic Law of Hong Kong, and involves the interplay of the authority (and the hierarchy of authority) in that respect between the judiciary of Hong Kong under the Basic Law and of the instrumentalities of the People's Republic of China over the Basic Law. It is a question with international ramifications (see, e.g., here).

This is the question that Jason Buhi poses and considers in his excellent essay, What’s Happening in Hong Kong: The November 2016 Interpretation of the Hong Kong Basic Law in Context, which follows. Mr. Buhi is Senior C.V. Starr Lecturer at the Peking University School of Transnational Law in Shenzhen, China. And I am proud to mention that he is also my former student. He can be reached at jbuhi@hku.hk.

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Jason Buhi

What’s Happening in Hong Kong: 

The November 2016 Interpretation of the Hong Kong Basic Law in Context

Somewhere between the election of President Trump, judicial neutralization of Brexit, and the Battle of Mosul, you may have heard that something also happened in Hong Kong last week. As I sat down to write a legal exposition upon it, I realized that isn’t what’s most needed right now. Most people simply don’t know what happened and need a place to begin.  

Unfortunately, Hong Kong doesn’t receive the correct type of media coverage. There is a lack of information tailored for persons of moderate curiosity, seeking something between the snippets of newspaper blurbs and sophistry of law review articles. This post is written for you: the curious student of political science, the foreigner with friends or family here, or the visitor with a warm memory of our city who has lost track of the rapid pace of events. I hope you find it a useful starting point.

BACKGROUND

Choosing where to begin the narrative is the most difficult part. Did these events begin two months ago, two years ago, or 19 years ago? I’ve decided to briefly provide deeper context. Feel free to jump ahead.

The British occupied Hong Kong in 1841, but by 1980 China sensed it had the strength and opportunity to reclaim it. To provide a smooth transition, a bilateral treaty known as the Sino-British Joint Declaration was signed in 1984. Within it, China pledged to grant Hong Kong a “high degree of autonomy except in foreign and defense affairs,” “executive, legislative and independent judicial power,” and 50 years of socioeconomic stability. These pledges were elaborated in the Hong Kong Basic Law (HKBL), Hong Kong’s subsequent “mini-constitution” or charter. Under these two documents – which together underlie a policy known as “one country, two systems” – Hong Kong returned to Chinese administration in 1997. What happened last week implicates that relationship.

It emanated from the local legislature. For their part, the British did very little to make Hong Kong democratic. They didn’t institute an elected legislature until 1985. Today that Legislative Council (or “LegCo”) has 70 seats, but it is an oddly gerrymandered creature. Its 70 members are selected via two methods. Half, or 35, are directly-elected by persons according to where they live on a “one person, one vote” basis. The other half are selected by special interest groupings socially-engineered by the government to represent different professional sectors. Thus, the popularly-elected seats tend to represent more anti-establishment views. The dichotomy prevents them from attaining a majority, however, and so their strength lies in maintaining an effective veto power.

A traumatic event occurred in 2014, when the Hong Kong Government tried to push a political reform package advanced by Beijing. Hong Kong’s financial district was paralyzed by crowds voicing popular opposition because the proposal did not meet their expectations. The event is known as the “Umbrella Movement” or “Occupy Central,” and it culminated in the “pan-democratic” (i.e., anti-establishment) legislators unanimously vetoing the proposal.

The first major LegCo election since that event occurred on 4 September 2016. The pan-democratic coalition gained three seats, but also experienced significant turnover. Five older, more moderate legislators were replaced by younger, more aggressive competitors. Some members of the younger generation – disenchanted by the lack of negotiation or a counteroffer during the events of 2014 – have embraced a more outspoken localist position, with some of them even discussing independence.

RECENT FACTS

Two of those newly elected-legislators, Sixtus Leung (30) and Yau Wai-ching (25), represent a new political party called “Youngspiration” (YS). At their swearing-in ceremony on 12 October, the duo defined the customary oath of office by swearing allegiance to the “Hong Kong Nation,” displaying a banner saying “Hong Kong is not China,” and distorted China’s proper name as the “People’s Re-Fucking of Shee-na.” LegCo Secretary-general Kenneth Chen invalidated their oaths, and LegCo President Andrew Leung scheduled them to retake it on 19 October.

On 18 October, the Hong Kong Chief Executive (CE) and Secretary of Justice filed a legal challenge in the High Court (which, despite its name, is Hong Kong’s intermediate level court). Per custom, the defendant was LegCo President Andrew Leung, whose attorneys argued that this was an intrusion upon parliamentary privileges and a violation of the separation of powers. The judge set a hearing for 3 November, but denied an injunction to stop the duo from retaking their oath. Instead, the pro-establishment legislators staged a walk-out, preventing the quorum needed to conduct official business. Fights broke out at a couple of sessions over the next week as the YS duo defiantly charged into subsequent council meetings.

The court hearing occurred on 3 November as planned. Under pressure from the CE as well as his pro-establishment constituency, LegCo President Andrew Leung withdrew his name from the defense. While the Government attorneys framed their case around HKBL Article 104, the lawyers for the YS duo framed their defense, in-part, around the separation of powers implied by that document. The judge took the case under advisement, noting probable intervention by Beijing.

Beijing’s intent to intervene was officially announced the next day. Under HKBL Article 158 (here), the National People’s Congress Standing Committee (the “NPCSC”) has the final authority to interpret the HKBL. They accepted the government’s issue framing around HKBL Article 104. Influential civil society actors including the Hong Kong Bar Association condemned the announced interpretation, and riots occurred outside of the Chinese central government’s Hong Kong liaison office on the night of 6 November. The text of the decision was announced the next morning. 

TEXTS

The text of Basic Law Article 104 is, well, pretty basic. It reads:

When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China.

Three other sources of law provide context. First, the wording of that oath and a penalty of disqualification for noncompliance is provided in Chapter 11 of the Hong Kong Oaths and Declarations Ordinance (here). Second, HKBL Article 79(9) tells us that the LegCo President may disqualify any LegCo member “[w]hen he or she is censured for misbehavior or breach of oath by a vote of two-thirds of the members of the Legislative Council present.” Finally, the Legislative Council Ordinance includes the possibility of a fine for disqualification (here). Therefore, it appears that Hong Kong law has adequate legal framework in place to deal with the issue comprehensively.

Nonetheless, the NPCSC decided that advocating self-determination touched their bottom line and implicated national security. They have interpreted the HKBL a total of four times before this, but never while a court case was pending. Their newest interpretation (here) states in pertinent part that “[a]n oath taker must take the oath sincerely and solemnly, and must accurately, completely and solemnly read out the oath prescribed by law.” No chance to retake an oath will be provided. Furthermore, “[a]n 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 in accordance with law.”

As the interpretation was announced, the Chairman of the NPCSC Basic Law Committee announced that it would have retroactive effect (here).      

LEGAL ISSUES

The intervention clearly implicates the very nature of Hong Kong. As in much of the world, big picture questions as to what/if limits exist on “national security” emergency legislation are being asked, but the local answer appears to be “few to none.” Since 2014 the NPCSC has declared its “comprehensive jurisdiction” over all local matters (here) and its ability to interpret the Basic Law at any time (here). These declarations significantly altered perceptions of Hong Kong’s autonomy and the understanding of the “one country, two systems” relationship in a relatively short time. The laisse-faire honeymoon – if there ever was one – is over.

As the Interpretation is not narrowly-tailored (it doesn’t focus upon the YS duo by name or deed), the Hong Kong courts will need to apply it in the still-pending litigation. We thus have a situation where common law courts must apply the Politburo’s intent regarding what constitutes “accurately, completely, and solemnly” taking an oath. If they fail, the NPCSC will surely intervene to correct them once again.

Common law courts normally operate by applying precedent and handling factual variations as they occur over time. Thus, it is now quite clear to our mode of analysis that future legislators-elect cannot swear allegiance to the “Hong Kong Nation,” unfurl a banner saying “Hong Kong is not China,” and curse China during the oath-taking process. But, one might ask their law students the following hypotheticals:

1.     What if the YS duo apologize, run for re-election, win, and retake their oaths accurately?

2.     What if a legislator-elect, in reciting the oath, raises his or her tone as if asking a question at times?

3.     What if a legislator-elect, in reciting the oath, pauses 6 seconds between words?

4.     What if a legislator-elect states the oath, then shouts the words “universal suffrage” at the end before leaving the podium?

5.     What if a legislator-elect omits the words “Hong Kong” from the recitation?

I mention these hypotheticals because all of them actually occurred in the 2016 LegCo swearing-in process. Up to eight legislators-elect can be targeted by government prosecutors if this interpretation is truly given retroactive effect. Neutralizing them would, in turn, neutralize the pan-democratic veto power.

Beyond that, what is “legal responsibility in accordance with law”? Such phrasing is alien to common law legal systems where punishments are stated clearly in advance. At present, this should implicate the measures indicated in HKBL Article 79(7), the Oaths and Declarations Ordinance, and the Legislative Council Ordinance (here). Those include being unseated and suffering a minor fine. Being that the Article 79(7) impeachment process was circumvented by this decision, however, the extent of liability envisioned by the Government is unclear. Importantly, the CE subsequently announced that he would reintroduce controversial national security legislation that seeks to impose lifetime sentences for treason and sedition (here). 

There is, of course, the very realpolitik argument that the NPCSC wanted to nip this issue in the bud politically. Two voices will no longer have a token pulpit to stand on, their message forced underground. To what extent law will be deployed as a political tool to pursue their constituency further remains to be seen.

CONCLUSIONS

The interpretation indicates a lack of trust in Hong Kong’s judiciary as well as the common-law method of legal analysis.  

There is no substantive reason to believe that the courts would have found unfavorably for the Government. While freedom of speech, expression and assembly are Hong Kong values, so is the rule of law. As demonstrated, Hong Kong local law contained enough process to dispose of the YS duo. Furthermore, common law legal systems often prioritize national unity in such matters. The Americans instituted a similar oath during the Civil War era, fearing that southern legislators would lie during the oath-taking process (here). The United States Supreme Court has ruled secession unconstitutional (here). Furthermore, whereas the Supreme Court permits burning the U.S. flag under freedom of speech protection (here), the Hong Kong Court of Final Appeal disagreed (here).

Thus, the legislators likely would have been disqualified one way or another without undermining the independence of the Hong Kong judiciary. Even if the decision was ultimately contrary to Beijing’s wishes, the NPCSC could have reversed it under Article 158. It is unclear at this time if this particular intervention while a court case was pending will undermine foreign business confidence in Hong Kong’s rule of law and judicial independence. The answer is clear to the hundreds of our austere legal professionals who wore black and marched solemnly from the High Court to the Court of Final Appeal on the evening of 9 November. The Sword of Damocles now hangs over any litigation at any phase.

Perhaps fortunately, the Hong Kong people have not taken to the streets in protest. Many persons troubled by this interpretation for legal or procedural reasons would be placed in the unenviable position of explaining to an unreceptive opposition that they are standing for freedoms of speech, expression, assembly and thought, the democratic process and/or the separation of powers, but not independence. This was a perfect storm for authoritarian elements. For now, many Hong Kongers are quietly absorbing the latest situation they feel powerless to affect.

·      Jason Buhi is Senior C.V. Starr Lecturer at the Peking University School of Transnational Law in Shenzhen, China. He can be reached at jbuhi@hku.hk.