China Flexes Legal Muscle to Quash Hong Kong Independence Calls

  • Ruling effectively prevents two localists from re-taking oaths
  • Rare intervention sparked protests, warnings about autonomy

China’s top legislative body ruled that Hong Kong people who advocate independence can’t hold public office, a rare intervention designed to prevent two elected “localists” from taking their posts in a case that threatens to spark further unrest.

The decision Monday by the National People’s Congress Standing Committee in Beijing represented only its second unilateral interpretation of Hong Kong law since the former British colony was returned to China almost two decades ago. It came amid a court battle over whether a pair of pro-independence activists voted into the city’s legislature in September could take their seats after insulting China in their oaths of office.

“What is a constitutional fact is that Hong Kong has been part of China, is part of China and will be part of China,” Leung Chun-ying, Hong Kong’s Beijing-backed chief executive, told reporters Monday after the interpretation. He said that calls for independence had bolstered belief among authorities in Beijing that the city needed to pass a long-delayed national security law banning treason, secession, sedition and subversion.

Yau Wai-ching, 25 and Baggio Leung at the Legislative Council on Nov. 4.

Photographer: Anthony Wallace/AFP via Getty Images

Democracy advocates argued that the intervention would harden opposition to the government while lawyers warned that preempting the courts risked damaging international confidence in the city as a bastion of political freedom and the rule of law. Thousands of protesters gathered Sunday outside Hong Kong’s highest court to protest the move before holding an hours-long standoff with police outside China’s Liaison Office that stretched into the early morning hours. 

“This is a disaster for the standing of the judiciary in Hong Kong, but it goes beyond the judiciary,” said Kevin Yam, a convener of the Progressive Lawyers Group. “We are essentially seeing an encroachment into Hong Kong’s legislative autonomy.”

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The NPC’s unanimous interpretation said that officials shall bear legal responsibility for making false oaths or engaging in activities that violate that pledge, adding: “Oath-taking shall not be rearranged.” On Saturday, it said the move was both “timely and necessary” amid growing pro-independence activities in the city.

The intervention showed that the Communist Party decided that keeping so-called “separatists” out of government was worth risking further criticism of its stewardship. A different kind of NPC Standing Committee edict two years ago -- one prescribing a Beijing-controlled process for electing Hong Kong’s top leader -- sparked the mass Occupy protests that shut down some city shopping streets for weeks and spawned the more radical “localist” movement.

Police officers stand guard during a protest near the Liaison Office in Hong Kong on Nov. 7.

Photographer: Justin Chin/Bloomberg

The two activists involved in the oaths fight -- Sixtus Leung, 30, and Yau Wai-ching, 25 -- were elected to the Legislative Council in September, despite the city government’s decision to bar some of the movement’s more radical members from running. They had their oaths voided Oct. 12 after they mispronounced the country’s name and unfurled banners proclaiming “Hong Kong IS NOT China.”

For more on Hong Kong’s struggle for greater democracy, click here

The NPC affirmed the Hong Kong government’s argument that advocating independence violates the city’s Basic Law, which declares the city an “inalienable part” of China. The interpretation came ahead of a local court decision on a bid by Leung to block the pair from retaking their oaths and vacate their seats. Hearings were held Thursday and a ruling was expected at any time.

Li Fei, chairman of the NPC panel responsible for Hong Kong law, said in Beijing on Monday that the independence of the city’s courts flowed from China’s legislature, which passed the statue in the first place. “There is no judicial independence beyond the Basic Law or that violates the Basic Law,” Li said.

The law gives the NPC Standing Committee -- led by the Communist Party’s No. 3 leader, Zhang Dejiang -- the power to interpret sections deemed unclear. This was only the fifth time since the handover in 1997 that China has exercised the power to interpret the Basic Law. The only other time it issued an interpretation without a local request was in 2004.

‘Particularly Ominous’

While Hong Kong leader Leung said that he supported the NPC’s decision, it was unclear what action the government would take to enforce it. Sixtus Leung and Yau received almost 58,000 votes combined, while candidates advocating some form of “self determination” got almost a fifth of the vote overall. Four of them have already taken their seats. One, Lau Siu-lai, was allowed to retake her oath after inserting long pauses between the words the first time in an attempt to obscure its meaning.

Alvin Cheung, a researcher at New York University School of Law’s U.S.-Asia Law Institute and a former Hong Kong lawyer, said the interpretation’s reference to the conduct of officials after being sworn in was “particularly ominous.”

“This suggests that legislators could be purged at any time for ‘conduct contrary to the oath,’” Cheung said. “This tactic has long been used in the mainland against rights lawyers, in the form of the ‘lawyers’ perjury rule.’”

— With assistance by Dominic Lau, David Ramli, Yuan Gao, and Fion Li

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