'HK Courts Have Lost The Power To Interpret The Law'

A prominent legal scholar says Beijing’s decision to oust four pro-democracy lawmakers has created “a bit of a constitutional crisis” and has taken away the power of Hong Kong courts to interpret the law.

Professor Simon Young, associate dean of the University of Hong Kong’s Faculty of Law, also said it is the first time a decision by the National People’s Congress Standing Committee (NPCSC) has been directed at specific individuals.

He was referring to a resolution on Wednesday that all public officers must support the Basic Law and be loyal to the SAR, and that they would not be fit for office if they supported Hong Kong independence, sought foreign interference, refused to accept China's sovereignty over the territory, or threatened national security.

The NPCSC specified that this applies to the four lawmakers who had been barred from running in September's eventually abandoned Legco elections – Alvin Yeung, Dennis Kwok, Kwok Ka-ki, and Kenneth Leung.

“For common law eyes, it’s quite extraordinary in that it is a decision which is purported to be made under legislative power that is directed at specific individuals,” Young told RTHK’s Backchat programme on Thursday.

He also questioned the legitimacy of the decision.

“Although they said that there needs to be a legal basis. The actual legal basis for disqualifying these four individuals seems to have come from the decision itself, it’s not some other legal basis that already preexisted in law,” he said.

Young said it’s worrying that the NPCSC has not only replaced the courts in interpreting the law, but seems to have taken up the role of making new laws, adding there are “very few checks and balances” over what it does.

“We are in a bit of a constitutional crisis again. Because every time the standing committee’s power is invoked, there’s always a concern that it’s violating separation of powers. Because it seems like they are making new law,” he said.

“And, of course, we have courts to interpret the meaning of upholding the Basic Law and pledging allegiance. And yet, it seems it’s been taken away from the courts."

And even though the decision does not give the executive free-standing power to remove lawmakers, Young said it does widen the grounds – albeit “rather ambiguous” grounds – for it to do so.

Young conceded that he can see why the government sought a decision on the lawmakers, as it could not remove the four without amending the law and this would have been impossible to do via a Legco that was not functioning.

But he said he hopes the NPCSC will not make another decision like this unless it is necessary.