The returning officer in charge of the Hong Kong Island constituency recently barred Agnes Chow Ting, a standing committee member of Demosistō, a political party that advocates “democratic self-determination” for Hong Kong, from running in the upcoming Legislative Council by-elections.
The officer referred to Article 104 of the Basic Law and the interpretation of this article made by the National People’s Congress Standing Committee (NPCSC) back in November 2016, and announced the nomination of Chow was invalid.
However, the fact is the so-called “legal grounds” cited by the Electoral Affairs Council for disqualifying Chow were flimsy as well as confusing, and can’t stand the most basic scrutiny. Here’s why:
True, the interpretation of Article 104 by the NPCSC, which is listed under Annex III as “Instrument 25”, is an indispensable part of the Basic Law.
Nevertheless, neither Article 104 nor “Instrument 25” has mentioned whatsoever that the idea of “self-determination” constitutes a violation of the Basic Law.
The notion that “self-determination” is unconstitutional has its origin not in the Basic Law itself, but rather only in the remarks made by Beijing officials and in some of the related documents concerning the NPCSC’s interpretation of Article 104.
Yet none of these remarks and documents have been officially incorporated into the Basic Law, and therefore they are, both in theory and in practice, not official part of Hong Kong’s mini-constitution.
As a matter of fact, Hong Kong’s Court of Final Appeal already laid down a very clear principle over the role of Basic Law articles in our local court proceedings as it gave a ruling on the “Director of Immigration v Chong Fung Yuen” case in 2001.
According to the principle, our courts don’t have to take into account argument or document that isn’t officially included in the Basic Law when hearing their cases.
As we can see, the Department of Justice has gone to such lengths to ban people of certain political stances from running in the Legco by-elections that it has invoked the wrong article in the Basic Law and the relevant interpretation to justify its decision and ignored the guidelines laid down by the Court of Final Appeal.
This article appeared in the Hong Kong Economic Journal on Jan 31
Translation by Alan Lee
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