The Decision of the Standing Committee of the National People's Congress (NPCSC) on the Continuing Discharge of Duties by the Sixth Term Legislative Council (LegCo) of the Hong Kong Special Administrative Region (HKSAR) (811 Decision) provides that the sixth-term LegCo of the HKSAR is to continue to discharge duties for not less than one year to address the lacuna in the legislature, which is a constitutional issue, caused by the postponement of the election by the HKSAR Government. However, it only dealt with the continuing discharge of duties by the legislature. The NPCSC made a Decision on the qualification of members of the LegCo of the HKSAR (Decision) on Wednesday. The HKSAR Government immediately announced the disqualification of four members of the sixth-term LegCo in accordance with the Decision.
The NPCSC’s Decision has solid legal basis, which can be summarised in four points. Firstly, it is made in pursuant to the Constitution of the People’s Republic of China (PRC). Articles 52 and 54 respectively stipulate that “it is the duty of citizens of the People’s Republic of China to safeguard the unification of the country and the unity of all itsnationalities”, and “it is the duty of citizens of the People’s Republic of China to safeguard the security, honor and interests of the motherland; they must not commit acts detrimental to the security, honor or interests of the motherland” while Article 67(1) sets out that the NPCSC shall exercise the functions and powers “to interpret the Constitution and supervise its enforcement”. The NPCSC has the duty to maintain the constitutional order of the HKSAR and to ensure that members of LegCo, who continued to discharge their duties in the sixth-term LegCo, must be in compliance with the legal requirements and preconditions for taking up the post of a LegCo member by upholding the Basic Law and pledging allegiance to the HKSAR of the PRC.
Secondly, according to the Decision on establishing and improving the legal system and enforcement mechanisms for the HKSAR to safeguard national security by the National People's Congress (NPC) and the Hong Kong National Security Law, it safeguards the systems under “One Country, Two Systems” from the perspective of national security. If people advocate or support "Hong Kong independence", refuse to recognise the PRC's sovereignty over Hong Kong and the exercise of the sovereignty, solicit intervention by foreign or external forces in the HKSAR's affairs, or carry out other activities endangering national security, they could not genuinely uphold the Basic Law and bear allegiance to the HKSAR of the PRC. They could neither fulfil the legal requirements and conditions for a LegCo member nor have the qualifications of a LegCo member.
Thirdly, it is made in accordance with the legal requirements and preconditions in respect of taking up the post of a LegCo member under Article 1 and the provision that any conduct in breach of the oath after the oath taking shall bear legal responsibility in accordance with law under Article 3 of the Interpretation of Article 104 of the Basic Law of the HKSAR of the PRC by the NPCSC (Interpretation of Article 104) in 2016. Article 1 of the Interpretation of Article 104 states that “to uphold the Basic Law and to bear allegiance to the HKSAR of the PRC” are not only the legal content which must be included in the oath but also the legal requirements and preconditions for standing for election in respect of or taking up the public office. At the same, the first paragraph of the Decision sets out the conducts which are in breach of the oath. When the member is so decided in accordance with law, he or she is immediately disqualified from being a LegCo member.
Lastly, the 811 Decision provides for the legal basis for LegCo members to continue discharging their duties in the sixth-term LegCo. Under such a special circumstance, the NPCSC has a constitutional duty to handle the issue concerning the qualification of LegCo members arising from the continuing discharge of duties by the LegCo, in particular whether they are in compliance with the legal requirements and preconditions of upholding the Basic Law and pledging allegiance to the HKSAR of the PRC. As the nominations of the four persons in question had been invalidated by Returning Officers in accordance with the Legislative Council Ordinance when they applied to participate in the LegCo election of the seventh-term, they were not qualified for taking part in the LegCo election and are naturally unable to be LegCo members. Therefore, the NPCSC passed a motion to decide that members of the sixth-term LegCo whose nominations were decided to be invalid in accordance with law by the HKSAR (including invalidation of nomination by Returning Officer under the Legislative Council Ordinance), he or she is immediately disqualified from being a LegCo member. The disqualification of LegCo members was therefore announced by the HKSAR Government according to the Decision.
Indeed, if we think hard, it is not difficult to understand that but for the special circumstances this year: the 811 Decision by the NPCSC was required to address the continuing discharge of duties by the LegCo caused by the postponement of the election, and that the Governmenthas not completed the exercise of the relevant local legislation on the Interpretation of Article 104, the four persons, whose nominations were invalidated, could not take part in the original LegCo election, and needless to say they could not take up the office as a LegCo member. The HKSAR Government had to request the Central Authorities to invite the NPCSC to make a decision on this special constitutional issue.
We should all bear in mind that China is a unitary state and power comes from the Central Authorities. Constitutional matters are ought to be handled by the NPC or NPCSC in accordance with the Constitution. Its legal decisions or instruments can provide legal basis with binding effect.
The Interpretation of Article 104 clearly states that oath takers must uphold the Basic Law and bear allegiance to the HKSAR of the PRC, adding that oath taker, who engages in conduct in breach of the oath, shall bear legal responsibility in accordance with law. These are already reflected in the first and third provisions of the Decision. Since the Interpretation of Article 104 has been made, the HKSAR Government endeavours to expedite the legislative procedure for local legislation which is fully supported by the Department of Justice. The HKSAR Government is determined to correctly fulfil its relevant constitutional duty.
November 14, 2020