The Standing Committee of the National People's Congress (NPC) has made an interpretation of Article 104 of the Basic Law, namely, on swearing-in by public officers of the SAR. It clearly specifies the criteria, content and attitude of oath-taking, stipulating that "an oath taker must take the oath sincerely and solemnly, and must accurately, completely and solemnly read out the oath prescribed by law", otherwise the oath taken is invalid.
No doubt, the NPC Standing Committee's interpretation of the Basic Law is not just "words uttered for the sake of uttering" but must be put into practice. The SAR Government and Judiciary are duty bound to implement it. Words and deeds running counter to the content of the interpretation must not be tolerated from now on, and what has happened must also be reviewed with the content of the interpretation and when necessary be retroactively dealt with in accordance with the law.
On this, Chief Executive Leung Chun-ying has said that works to follow up on the interpretation are being considered. The SAR Government supplied further arguments yesterday for the judicial review on disqualifying Supplied Sixtus Leung Chung-hang and Yau Wai-ching. At the same time, a taxi driver filed an application in his own name to the High Court yesterday for a judicial review on the validity of the swearing-in of another eight legislators: Leung Kwok-hung, Nathan Law Kwun-chung, Cheng Chung-tai, Shiu Ka-chun, Raymond Chan Chi-chuen, Eddie Chu Hoi-dick, Lau Siu-lai, and Edward Yiu Chung-yim.
In fact, such lawsuits, filed either by the SAR Government or righteous citizens, show the authoritativeness of the NPC Standing Committee's interpretation of the Basic Law has firmly established in the SAR, which is to the great satisfaction of the people and supported popularly. The opposition's evil behaviour at the Legislative Council (Legco) has made vast majority of citizens gnash their teeth with disgust yet feel helpless. Even the SAR Government have been unable to take any action, being hesitant to "pelt a rat for fear of smashing the vase". Now with the NPC Standing Committee's interpretation of the Basic Law setting the definite tone, there is no more ambiguity concerning swearing-in and there are criteria for what is right and what wrong. So if those who have wantonly added words in their oaths or taken their oaths illegally could continue to sit in the legislature without being dealt with in accordance with the law, then is it meant that the NPC Standing Committee made the interpretation of the Basic Law in vain? Or is the move just like "shooting a couple of kids with airplanes and big guns", as asserted by some members of the opposition?
As a matter of fact, the NPC Standing Committee moved to interpret the Basic Law not to deal with a handful of individuals or certain individual cases but to fundamentally specify certain rules and criteria. That is, anyone who does not take his or her oath as required by law or declines to take the oath cannot become a legislator, and pro-Hong Kong independence elements cannot join the governance structure. That's all there is to it!
Under such circumstances, therefore, it is completely a law-respecting and law-abiding move for the SAR Government and righteous citizens to file lawsuits through legal means to demand the NPC Standing Committee's interpretation of the Basic Law be comprehensively and accurately implemented. Under the common law system, courts do not pursue lawsuits on their own initiative following the Basic Law interpretation, but will follow up and handle cases once judicial reviews are filed by others. For all such case in proceeding, except for those already settled by the Court of Final Appeal Courts, SAR courts at all levels must make their rulings based on the content of the NPC Standing Committee's interpretation and make no other interpretation and set no other criterion.
What is more important is that, in this process, the relationship between the NPC Standing Committee's interpretation of the Basic Law and the SAR's Judiciary is clear-cut and sticks out a mile in nature and in view of their respective powers and responsibilities and which is the principal and which the subordinate. The NPC Standing Committee's interpretation of the Basic Law is at the constitutional level while the SAR's Judiciary at the level of a regional legal system. Both are not in conflict, so there is no question of one jeopardising or replacing the other.
The criteria for valid oath-taking are set by the NPC Standing Committee's interpretation of the Basic Law. Whether an individual legislator's swearing-in meets the criteria and is valid and he or she should be disqualified from assuming office is to be judged by an SAR court. In this way, each performs its own functions and demonstrates its special skill, to the satisfaction of citizens and to the benefit of the SAR.
11 November 2016
