Beijing’s Draft Ruling on Oath-Taking for Hong Kong Legislators ‘So Detailed it Amounts to a New Law’Posted: November 5, 2016
Constitutional expert says interpretation sets dangerous precedent for Beijing to interfere when it does not like a law, but Bar Association chairwoman believes it will have limited impact.
Joyce Ng reports: The Beijing draft ruling on how lawmakers should take their oath appears so elaborate that it amounts to making a new law for Hong Kong, lawyers say, though they differ on how much the intervention will affect the judicial system.
One professor says the ruling could set a dangerous precedent for Beijing to issue its own interpretation if it does not like a Hong Kong law or does not trust local judges in dealing with a sensitive issue. The Bar Association chief says the decision could provide clarity for lawmakers about oath-taking.
The draft interpretation, set to be voted on Monday, is likely to prescribe the format and conduct for legislators taking the oath and the consequences of non-compliance, as well as defining words like “allegiance” in Article 104 of the Basic Law, according to Basic Law Committee members who have been consulted by the National People’s Congress Standing Committee.
But Johannes Chan Man-mun, an expert in constitutional law at the University of Hong Kong, said such details should not exist in or be added to a document like the Basic Law.
“It is acceptable Beijing wants to define words like ‘allegiance’ and ‘uphold’, but to add in so much other detail is not interpreting the law but making a new law, which the Standing Committee cannot do,” he said.
The controversy erupted when two localist lawmakers used derogatory language about China when taking their oaths. The chief executive and secretary for justice then launched a court bid to disqualify the two, Sixtus Baggio Leung Chung-hang and Yau Wai-ching, from taking their Legco seats.
Under Article 18 of the Basic Law, if the Standing Committee wishes to apply a mainland law to Hong Kong, it must first consult the Hong Kong government and add it to annex 3 of the Basic Law. Chan said the Standing Committee arguably bypassed this procedure by way of interpretation.
Another possible point of the interpretation is to confirm that the Legislative Council’s secretary-general, who is in charge of administration issues, has the power to invalidate oaths.
Chan said it would be ridiculous to elevate the status of the secretary-general and put him in the constitutional document, giving him too much power. Read the rest of this entry »