China's top legislature on November 7 adopted an interpretation of Article 104 of the Basic Law of Hong Kong Special Administrative Region (SAR) by a unanimous vote.
The interpretation was issued by the National People's Congress (NPC) Standing Committee following the behavior of a handful of legislators-elect during the election of Hong Kong's Legislative Council (LegCo) and the subsequent swearing-in ceremony.
Article 104 of the Basic Law stipulates: "When assuming office, the chief executive, principal officials, members of the executive council and of the legislative council, judges of courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China."
According to the interpretation of Article 104, "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" 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.
Oath taking is a legal prerequisite and required procedure for public officers elected to office, it said.
No public office shall be assumed, no corresponding powers or functions shall be exercised, and no corresponding entitlement shall be enjoyed by anyone who fails to lawfully and validly take the oath or who declines to take the oath, it spelled out.
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", according to the interpretation.
An oath taker is disqualified forthwith from assuming the public office specified in the Article if he or she declines to take the oath, the interpretation said.
Anyone who intentionally deviates from the written script or adds words that do not accord with the original oath prescribed by law, or is neither sincere or solemn shall be treated as challenging the oath. Thus, the oath is deemed invalid and the oath taker disqualified forthwith, it added.
The oath must be taken before a 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, the interpretation read.
The taking of the oath stipulated by Article 104 of the Basic Law is a legal pledge made by the public officers specified in the Article and is legally binding, it said.
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, it added.
A spokesperson with the Hong Kong and Macao Affairs Office of the State Council issued a statement hailing the adoption of the interpretation as "absolutely necessary" and timely.
"The interpretation demonstrates the Central Government's firm determination and will against 'Hong Kong independence,'" the spokesperson said.
The spokesperson went on to say that the interpretation "underscores the authority of the Basic Law and the rule of law in Hong Kong."
Hong Kong is a local administrative region directly under the Central Government, the spokesperson confirmed, and the LegCo is a SAR legislative organ set up in accordance with the Hong Kong Basic Law.
"The interpretation of the Basic Law given by the NPC Standing Committee is the same as the law itself," the spokesperson added, stressing that relevant provisions in the Basic Law and its interpretation "must be implemented to the letter."
Independent judicial power cannot go beyond Basic Law
Li Fei, deputy secretary general of the NPC Standing Committee, said at a press conference 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 that violates or goes beyond the Basic Law shall not be allowed, according to Li.
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.
The interpretation "will provide a legal basis for the judicial and administrative organs in Hong Kong and legal guidance for citizens in the SAR," 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, Li said, stressing the NPC is not interfering in the independent judicial power enjoyed by Hong Kong.
"Some people in Hong Kong, who appear as authorities of law, have spread fallacies and absurdities about the Basic Law when it was in the making," Li said. "And they continue to distort the law though it has been in effect for so many years, resulting in a trap of public opinion, which suggests any interpretation of the law is equivalent to interference in Hong Kong's independent judicial power. "
Nature of advocacy for "Hong Kong independence"
In recent years, some people in Hong Kong SAR have publicly advocated for "Hong Kong independence," causing concern among all Chinese, including those who live and work in Hong Kong, said Zhang Rongshun, vice chairperson of the Legislative Affairs Commission of the NPC Standing Committee in an explanation of the draft interpretation on November 5.
The nature of "Hong Kong independence" is to split the nation, Zhang said, stressing the words and actions advocating "Hong Kong independence" would severely "damage national unity, territorial integrity and national security and affect the long-term prosperity and stability Hong Kong."
During the election of the sixth LegCo of the Hong Kong SAR, six candidates who publicly supported "Hong Kong independence" were deprived of the right to stand for valid nomination.
At the swearing-in ceremony for the sixth LegCo of the Hong Kong SAR on Oct. 12, a handful of legislators-elect violated the oath intentionally, publicly voiced support for "Hong Kong independence" and insulted the Chinese nation. Their oaths were declared invalid.
Hong Kong society, the LegCo itself and the SAR Government disagreed on whether their oaths were valid and whether a swearing-in ceremony should be rearranged, which had affected the normal operation of the LegCo.
The draft of the interpretation was made in response to the situation, taking into consideration that the disagreement concerns the accurate understanding and implementation of relevant provisions of the Basic Law of the Hong Kong SAR, according to Zhang.
Opinions of the Hong Kong Special Administrative Region Basic Law Committee under the NPC Standing Committee on the draft interpretation had been solicited in accordance with the Basic Law, according to Zhang.
Zhang stressed advocacy for "Hong Kong independence" in Hong Kong SAR is prohibited by the Basic Law of the Hong Kong SAR, which prescribes that the Hong Kong SAR is an inseparable part of the People's Republic of China.
People who advocate for "Hong Kong independence" are disqualified from running as members of LegCo and should have their conduct investigated, Zhang added.
When it comes to curbing and striking advocacy for "Hong Kong independence" according to law and safeguarding the core national interest and fundamental interests of the Hong Kong SAR, the central authorities'attitude is "never blurred" and it "will not show any mercy", Li said.
Also adopted at the end of the bimonthly session of the NPC Standing Committee on November 7 were a cybersecurity law, a law on promoting the development of the film industry, and decisions on revising laws on private education and marine environment protection as well as a package of 12 laws, including the foreign trade law.
President Xi Jinping signed presidential decrees to release the laws and decisions on November 7.
The closing meeting of the bimonthly session was presided over by Zhang Dejiang, chairman of the NPC Standing Committee. He also presided over a chairpersons' meeting of the NPC Standing Committee before the draft legislation, laws and decisions were put to vote.
The interpretation demonstrates the central authorities' determination in implementing the "one country, two systems" principle, said the top legislator, while presiding over the final meeting of the session.
"(It) embodies the common aspirations of the 1.3 billion Chinese people, including compatriots in Hong Kong, in safeguarding national sovereignty, security and development interests," the top legislator added.
(Xinhua News Agency November 7, 2016)