By Tony Cheung and Elizabeth Cheung
City’s legal system can handle issue, Rimsky Yuen says, but critics say National People’s Congress Standing Committee could seek an interpretation on its own
The Hong Kong government made clear on Monday that it had no plans to resort to a contentious option of asking the national legislature to interpret the Basic Law to fend off legal battles looming over the candidate disqualification fracas.
Justice Secretary Rimsky Yuen Kwok-keung gave the assurance after localist Edward Leung Tin-kei of Hong Kong Indigenous said he would submit an election petition against a returning officer’s “political decision” to disqualify him from running in the Legislative Council elections.
“The issue can be handled by the legal system in Hong Kong. From the stance of the Department of Justice, we will not seek the National People’s Congress to reinterpret the law,” Yuen said.
Leung and five other localists were banned from contesting the polls after electoral returning officers ruled they were violating the Basic Law with their pro-independence stance.
Defending their decision, Yuen said returning officers had been given power and responsibility by the law to decide whether a candidate was qualified and they would decide based on an overall assessment.
“The officer would look at all the viewpoints rather one single word. Some people might have mentioned the wording of Hong Kong independence, but we have to look at the context,” Yuen said.
Over the past few days, the legal sector and pan-democrats have expressed fears that the National People’s Congress Standing Committee (NPCSC) would invoke its power to interpret the Basic Law to make sure such independence advocates would be kept permanently out of Legco. Several pro-Beijing politicians said turning to the body was a logical move.
Barrister Wilson Leung, convenor of the Progressive Lawyers Group, told the Post that while Yuen’s pledge alleviated fears, there was nothing preventing the NPCSC from initiating an interpretation if a banned candidate won in a legal battle against the Hong Kong government.
“The battle was mainly about the Legco Ordinance, not the Basic Law … but we don’t know what Beijing will do,” Leung said. “It is quite likely that the proposed election petition will succeed because the ordinance did not say returning officers could disqualify people based on political views.”
Basic Law Committee member and University of Hong Kong law professor Albert Chen Hung-yee told the Post: “The present dispute relates to how to interpret and apply the electoral law of Hong Kong. The NPCSC has no power to interpret the laws of Hong Kong other than the Basic Law.”
Under Article 158, the NPCSC has the power to interpret the Basic Law. But the execution of such power has been highly controversial. In 1999, more than 600 lawyers took to the streets after the body made the first of four interpretations. That first interpretation overturned a landmark right-of-abode judgement by the city’s top court.
In 2005, about 850 people rallied in protest against the third interpretation, which was widely seen as a pre-emptive move to ensure no court action could derail the chief executive election that year.
Both interpretations were at the Hong Kong government’s request, while the two remaining interpretations were either initiated by the NPCSC or sought by the Court of Final Appeal.
Additional reporting by Jeffie Lam
Article originally appeared in South China Morning Post on 8 August 2016.