Editor’s Note: as the controversy surrounding the Hong Kong oath-taking case deepens, opinions and analyses are being published on how this case relates to the power of legal interpretation. Commentaries on the NPC Standing Committee’s power of legal interpretation have been published on the China Daily (here, here, here), on the Global Times (here), as well as on blogs (here). The NPC Standing Committee may provide an interpretation of article 158 of the Hong Kong Basic Law (The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress) next week.
Today, the People’s Daily has published what can be considered the most authoritative comment on the controversy.
I am presenting an unofficial translation of the article, a document which will acquire historical significance in due time. The translation is not free from errors. Your comments and feedback are more than welcome.
Legislative Interpretation by the National People’s Congress is a right and it is also a constitutional responsibility
The 24th session of the Standing Committee of the 12th National People’s Congress has already set in motion the legislative interpretation procedure. It will make an authoritative interpretation of article 104 of the Hong Kong Basic Law, to clarify Hong Kong society’s murky understanding of the system of oath of office by public officials of the Special Administrative Region, which is regulated by the Basic Law; to provide a strong guidance and a clear direction to deal with the problems occurred during the election and oath taking by members of the Hong Kong Legislative Council in accordance with the law. The jurisprudential and legal basis of this interpretation are adequate, and the interpretation is timely, extraordinarily necessary, of important significance, and of profound and long-lasting influence.
Legislative interpretation by the National People’s Congress is not only a right, but also a responsibility which has an adequate jurisprudential and legal basis. The Constitution of the People’s Republic of China gives the power of legislative interpretation to the Standing Committee of the National People’s Congress, and section 1 of article 158 of the Hong Kong Basic Law provides that: “The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.” Making this spontaneous interpretation of the law, is a constitutional responsibility of the National People’s Congress must fulfill in order to protect state sovereignty and authority, and the policy of “One Country Two Systems”. For some time, certain persons in Hong Kong have absolutely unrestrainedly agitated for “Hong Kong independence”, and some candidates have even used the occasion of the oath to openly proclaim “Hong Kong independence”, insulting the state and the ethnic groups, violating the Constitution and the Basic Law, and furthermore violating relevant Hong Kong legislation, infringing the bottom line of “One Country Two Systems”, endangering national unity, territorial integrity and state security, harming the state’s core interest and the basic interest of the broad residents of Hong Kong in vicious ways. The National People’s Congress and its Standing Committee exercise the legislative power of the state, and they have the right and the responsibility to protect the authority of the Constitution and of the Basic Law, to resolutely oppose and restrain “Hong Kong independence”, to protect the policy of “One Country Two Systems”, to protect state security.
The interpretation has an important significance in guaranteeing that the Basic Law is comprehensively and precisely applied in the Hong Kong Special Administrative Region, and in protecting the legal order of Hong Kong. According to the Constitution and the Basic Law, the Standing Committee of the National People’s Congress can exert this power as it is needed, and at any time. At the moment, there is a controversy in Hong Kong society on how to understand provisions on the oath, and the “oath incident” has enormously disturbed the normal operations of the Legislative Council. The core of this problem is that those persons who split the state to carry out “Hong Kong independence” directly violate the Constitution, the Basic Law, and relevant Hong Kong legislation, and they are not qualified to take part to the election and to hold a public office under the Basic Law. The Standing Committee of the National People’s Congress timely interpretation of article 104 of the Basic Law possesses an extraordinarily important, profound and long-lasting significance in making a final decision and shedding light on the red line of the law, and in constraining “Hong Kong independence”, protecting the authority of the Constitution and the Basic Law, protecting the legal, social, and political stability of Hong Kong.
According to the Hong Kong Basic Law, interpretations by the Standing Committee of the National People’s Congress have the highest legal authority, and therefore legislative interpretations have the same legal force as the Basic Law. Any piece of law in the Hong Kong Special Administrative Region, included ordinary legislation, must not conflict with the Basic Law. Administrative organs, legislative organs and judicial organs in the Hong Kong Special Administrative Region must all comply with the Basic Law and its interpretations. According to the legal basis specified by the interpretation of the Standing Committee of the National People’s Congress, Hong Kong judicial organs must correctly deal with relevant cases, in line with the principle of rule of law. This is an important measure to guarantee the correct implementation of the Hong Kong Basic Law and other relevant legal provisions in Hong Kong. Moreover, the interpretation will provide a clear rule and set a standard on dealing with similar incidents in the future.
Since Hong Kong’s return, the Centre’s resolution in implementing “One Country Two Systems” has been unswerving. The basis and premise of “One Country Two Systems” is “One Country”. Without “One Country” there is not “Two Systems”. The point of departure and goal of the Standing Committee of the National People’s Congress using its power of legislative interpretation is that to guarantee that the policy of “One Country Two Systems” and the Basic Law be implemented, to guarantee the long-term prosperity and stability of Hong Kong, it is necessary to continue to obtain the endorsement and support of the whole Chinese People, included the fellow citizens of Hong Kong.Interpreting the Basic Law is a need of protecting the national security, and it also provides a basic guarantee to the normal operation of the Hong Kong Legislative Council, to the government governing in accordance to the law, and to the Special Administrative Region long-term peace and stability. Its legality, necessity and authoritativeness are beyond dispute.