THE PROGRESSIVE LAWYERS GROUP’S SHORT COMMENTARY REGARDING A VIEW EXPRESSED BY MR LI FEI DURING HIS MEETING WITH HONG KONG LEGISLATIVE COUNCILLORS ON 31 MAY 2015
On 31 May 2015, a number of Hong Kong Legislative Councillors went to Shenzhen to attend a meeting over political reform issues with Central Government officials. Central Government officials used the occasion to express many views, of which most are either matters of detail on which we have previously stated a view, or prolix political discourse. As such, we will not comment on any such views.
However, we note that during the speech of Mr Li Fei, the Deputy Secretary General of the National People’s Congress, he made the following point in relation to the Standing Committee of the National People’s Congress’s (“NPCSC”) “August 31 Decision”:
“The NPCSC, apart from having the power to decide on political system development, also has the power to interpret the Basic Law. Although the [August 31] Decision is not an interpretation, but it encapsulates NPCSC’s authoritative understanding of the Basic Law, and has unchallengeable legal effect.” (Our translation)
In one statement, Mr Li has nakedly displayed how those in power have used official authority override the law, and have put political expedience on equal footing with the law. According to the Basic Law, its annexures, and NPCSC’s past interpretations in accordance with the Basic Law:
– Prior to the Hong Kong Legislative Council getting to consider a political reform proposal, the NPCSC’s power in relation to political reform is limited to whether there is a need to change the method for selecting the Chief Executive. The August 31 Decision is subject to the same limitation.
– The NPCSC’s ultimate power to make a determination on political reform is only to be used after a two-thirds majority of all Hong Kong Legislative Councillors pass, and the Chief Executive approves, the political reform package. In other words, the NPCSC’s power of determination is one of ultimate veto, and not a power to pre-set a framework.
– In exercising its powers to interpret the Basic Law, the NPCSC must first consult the Basic Law Committee for its views. Both in terms of process and of nature, interpretation of the Basic Law and the NPCSC’s power to decide whether the method for selecting the Chief Executive needs to change are two separate matters.
The above points demonstrate clearly that as a matter of law, the NPCSC fundamentally lacks the power to use the August 31 Decision to set a framework for the method of selecting the Chief Executive. If those in power do respect the rule of law, they should not and cannot use the NPCSC’s powers at another stage or under a different set of procedures to obfuscate matters, and give power where none exists, nor make legal what is illegal.
Mr Li also said in his speech that “[w]e cannot do anything that is against the Basic Law” (our translation). We hope that those in power can act on their words, and not say one thing, but do another.
Progressive Lawyers Group
1 June 2015