NEWSLETTER Issue XXI of 2016
2016/11/08

 

The National People's Congress of China 

Adopts Interpretation of Basic Law of 

Hong Kong Special Administrative Region

On 7 November 2016, China's top legislature adopted an interpretation of Article 104 of the Basic Law of Hong Kong Special Administrative Region (SAR) by a unanimous vote.

In accordance with Article 67(4) of the Constitution of the People's Republic of China and the first paragraph of Article 158 of the Basic Law, The Standing Committee of the National People's Congress (NPC) has decided to make the following interpretation:

1. To uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China" and to bear "allegiance to the Hong Kong Special Administrative Region of the People's Republic of China" as stipulated in Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, are not only the legal content which must be included in the oath prescribed by the Article, but also the legal requirements and preconditions for standing for election in respect of or taking up the public office specified in the Article.

2. The provisions in Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China that "When assuming office", the relevant public officers "must, in accordance with law, swear" bear the following meaning:

(1) Oath taking is the legal prerequisite and required procedure for public officers specified in the Article to assume office. No public office shall be assumed, no corresponding powers and functions shall be exercised, and no corresponding entitlements shall be enjoyed by anyone who fails to lawfully and validly take the oath or who declines to take the oath.

(2) Oath taking must comply with the legal requirements in respect of its form and content. An oath taker must take the oath sincerely and solemnly, and must accurately, completely and solemnly read out the oath prescribed by law, the content of which includes "will uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China".

(3) An oath taker is disqualified forthwith from assuming the public office specified in the Article if he or she declines to take the oath. An oath taker who intentionally reads out words which do not accord with the wording of the oath prescribed by law, or takes the oath in a manner which is not sincere or not solemn, shall be treated as declining to take the oath. The oath so taken is invalid and the oath taker is disqualified forthwith from assuming the public office specified in the Article.

(4) The oath must be taken before the person authorized by law to administer the oath. The person administering the oath has the duty to ensure that the oath is taken in a lawful manner. He or she shall determine that an oath taken in compliance with this Interpretation and the requirements under the laws of the Hong Kong Special Administrative Region is valid, and that an oath which is not taken in compliance with this Interpretation and the requirements under the laws of the Hong Kong Special Administrative Region is invalid. If the oath taken is determined as invalid, no arrangement shall be made for retaking the oath.

3. The taking of the oath stipulated by Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is a legal pledge made by the public officers specified in the Article to the People's Republic of China and its Hong Kong Special Administrative Region, and is legally binding. The oath taker must sincerely believe in and strictly abide by the relevant oath prescribed by law. An oath taker who makes a false oath, or, who, after taking the oath, engages in conduct in breach of the oath, shall bear legal responsibility in accordance with law.

Following the behavior of a handful of legislators-elect during the election of Hong Kong's Legislative Council and the subsequent swearing-in ceremony, this interpretation clarifies the implications and requirements of the oaths taken by legislators-elected, and showcases the firm opposition of the central authorities to "Hong Kong independence".

Li Fei, deputy secretary general of the NPC Standing Committee, said at a press conference Monday that the independent judicial power, including that of final adjudication, exercised by the Hong Kong SAR, is provided by the NPC Standing Committee through the Basic Law. Independent judicial power cannot violates or goes beyond the Basic Law.

The purpose of the NPC Standing Committee in clarifying the implications of relevant provisions in the Basic Law by issuing an interpretation is to ensure the accurate implementation of the provisions. The NPC Standing Committee has the responsibility to issue an interpretation when disagreement on the provisions of the Basic Law in Hong Kong has affected the implementation of the Basic Law and the "one country, two systems" principle, according to Li.

Li Said, "the Constitution of the nation and the Basic Law of the Hong Kong SAR stipulates that the NPC Standing Committee exercises comprehensive and final rights when interpreting the Basic Law. Local laws in Hong Kong shall not contradict the interpretation issued by the NPC Standing Committee in accordance with law. The NPC is not interfering in the independent judicial power enjoyed by Hong Kong."

Relevant Links:

Full text: Interpretation of Article 104 of Basic Law of Hong Kong SAR

http://news.xinhuanet.com/english/2016-11/07/c_135811504.htm

Interpretation shows firm opposition to "Hong Kong independence": top legislator

http://news.xinhuanet.com/english/2016-11/07/c_135812083.htm

Embassy of the People's Republic of China

3505, International Place, NW Washington DC, 20008

chineseembassyspokesperson@gmail.com

Your comments are welcome.

 

 

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