Enforcing an Unfortunate, Unnecessary and 'Unquestionably Binding' NPCSC Interpretation: The Hong Kong Judiciary's Deconstruction of Its Construction of the Basic Law

Abstract

The Standing Committee of the National People’s Congress adopted on 7 November 2016 an interpretation on the oath-taking provision of art 104 of the Basic Law of the Hong Kong Special Administrative Region. This Interpretation has been regarded in Hong Kong as an unfortunate and unnecessary intervention into the HKSAR Government’s legal proceedings for the disqualification of two legislators from their offices (the Leung Yau proceedings). Although the judgments of the Court of First Instance and the Court of Appeal in the Leung Yau proceedings had considered this Interpretation to be “unquestionably binding”, it was Mr Justice Thomas Au’s judgments of 14 July 2017 disqualifying four more legislators from their offices and of 13 February 2018 dismissing Chan Ho Tin’s election petition, respectively, that it was sought to fuse this Interpretation into the Hong Kong’s judicial and legal processes. This article examines this trio of cases and claims that with the insistence or acquiescence of the appellate courts, no attempt was made to apply this Interpretation consistently with values underlying Hong Kong’s common law-based legal system under the Basic Law. Rather, “faithful transcription” and “patriotic administration” had been engaged in. The judgments expose a probable conflict in judicial duty which, if not resolved properly, might undo the constitutional jurisprudence the HKSAR courts have constructed since their establishment.

Keywords: Hong Kong, Basic Law, Interpretation, Courts, Common law, Legislative Council, Oath Taking Cases

JEL Classification: K10, K30