On Wednesday, Beijing passed a decision to let incumbent Hong Kong lawmakers remain in office for at least one year, as a solution to the lacuna resulting from the 2020 Legislative Council (LegCo) election postponement. China’s top legislative body – the National People’s Congress Standing Committee (NPCSC) – voted in favour of the decision after September’s general election was postponed for a year over Covid-19 concerns. The local government invoked the controversial Emergency Regulations Ordinance to do so – a law previously used in 2019 to ban the wearing of masks amidst intense street protests.
HKFP examines how the decision was made, and why the issue was referred to Beijing to solve.
Why is the Standing Committee involved? Isn’t this a Hong Kong matter?
Yes and no. The Emergency Regulations Ordinance (ERO) is a piece of local legislation that allows the Chief Executive to unilaterally pass laws in times of emergency or public danger. Hong Kong’s Court of Appeal, the highest judicial body to examine the colonial-era law to date, upheld its constitutionality this April. Beijing’s approval is not expressly required before the ERO can be invoked.
However, the use of the ERO to postpone a Legislative Council election creates a new dilemma regarding the length of the legislative term. Article 69 of Hong Kong’s mini-constitution, the Basic Law, stipulates that Legislative Council terms must last four years. Since the Hong Kong government cannot use the ERO to overrule the Basic Law, it decided to seek assistance from the Standing Committee, which retains the ultimate power to interpret it.
How can Beijing change the four-year legislative term without amending the Basic Law?
The Standing Committee is a legislative body in Beijing which retains the ultimate power to interpret not just Hong Kong’s Basic Law, but all other national laws in China. The committee is not required to follow the common law principles that guide legislative interpretation in Hong Kong’s legal system, where a plain reading of the four-year term limit in Article 69 may leave little room for flexibility. Although Wednesday’s decision was not explicitly referred to as an interpretation, it is because of these differences in approach that Hong Kong’s Basic Law has never been formally amended since coming into effect in 1997.
It is also not the first time that the Standing Committee has made a ruling on term limits in Hong Kong. In 2005, Chief Executive Tung Chee-hwa resigned midway through his second term, raising the question of whether his successor would serve only the remainder of his term, or start a new five-year term from scratch. On that occasion, the Standing Committee decided that the new Chief Executive would serve only the remainder of Tung’s second term before the next small-circle election took place in 2007.
Is there an alternative to extending the term of the current Legislative Council?
Yes, but it would likely be even more controversial. For the first year after Hong Kong’s handover to Chinese rule, a Provisional Legislative Council passed laws for the territory until the first post-handover elections were held in 1998. The provisional body was composed of members appointed by an electoral college widely seen as pro-Beijing, and opposition figures criticised the arrangement as being undemocratic. Were the 1997-98 Provisional Legislative Council used as a precedent to fill the present-day legal vacuum, the resulting democratic deficit would likely be the subject of harsh criticism from Hong Kong’s opposition parties. It could also attract concern from western governments at a time when Beijing’s diplomatic relations are already frayed.
Why were four sitting lawmakers thought to be at risk of losing their seats?
Three lawmakers from the pro-democracy Civic Party, Dennis Kwok, Alvin Yeung and Kwok Ka-ki, along with accountancy sector lawmaker Kenneth Leung, were elected in 2016 and submitted their nomination forms for the 2020 race before the postponement was announced. The electoral officers in their respective constituencies deemed their nominations invalid, citing previous support for U.S. sanctions on Hong Kong and an alleged intention to use their positions in LegCo to indiscriminately vote down government bills in order to force a dialogue on key protest demands from last year.
Because their nominations were ruled invalid, some pro-Beijing commentators suggested that the four lawmakers could not expect to be permitted to remain in office for the term extension, as the government had already decided they lacked the necessary intention to uphold the Basic Law. However, it is worth remembering that the Hong Kong government insisted that this year’s election was postponed solely because of the health risks associated with Covid-19, and political considerations were not involved.
The Standing Committee decision did not explicitly address the issue, but Legislative Council President Andrew Leung expressed the view that the decision should be interpreted in simple terms, and he presumes that all incumbent lawmakers will be allowed to continue serving during the term extension.