Written By: Chester Chia
On 11th November 2020, the Standing Committee of the National People’s Congress (NPCSC) of the People’s Republic of China (PRC) passed a decision on the eligibility of Legislative Council (LegCo) members of the Hong Kong Special Administrative Region (HKSAR) (the Decision). Following the Decision, the HKSAR government released a statement disqualifying four incumbent LegCo members with immediate effect. All of the members who were disqualified are pro-democracy members, namely Alvin Yeung, Dennis Kwok Wing-hang, Kwok Ka-ki, and Kenneth Leung. Shortly after the disqualification, the entirety of pro-democracy members resigned in protest, claiming that the Decision is “clearly in breach of the Basic Law, and a failure to observe due process.” Hence, the key issue here concerns the constitutionality of the Decision and disqualification.
In short, this article aims to explore the following questions:
Is the Decision is unconstitutional?
Is the HKSAR government’s announcement to disqualify LegCo members based on the NPCSC’s Decision unconstitutional?
It is important to stress that this article focuses on nothing more but the legality of the NPCSC’s Decision and the HKSAR government’s disqualification of the four members. It does not advocate for any political views.
Events before the NPCSC’s Decision on 11th November 2020
The four LegCo members were elected in 2016 to serve a four-year term until 30th September 2020. They all sought for re-election and subsequently filed their applications to run as election candidates. On 30th July 2020, the returning officers disqualified the four of them, along with eight other candidates, from running in the upcoming election. In their ruling letter, the returning officers found them to have lacked the genuine and true intention to uphold the Basic Law – Hong Kong’s mini-constitution. The returning officers reasoned that the four had committed at least one of the following acts before the time of nomination, which are:
Solicited intervention by foreign or external forces in the HKSAR’s affairs;
Expressed an intention to indiscriminately vote down any legislative proposals; or
Refused to recognise the PRC’s sovereignty over Hong Kong and the exercise of said sovereignty.
The LegCo election was later postponed by the Chief Executive (CE), citing an upsurge in coronavirus cases. The CE had done so according to the NPCSC Decision passed on 11th August 2020, where it extended the term of the incumbent LegCo members for no less than one year. The Decision, however, was silent on the status of the four incumbent members who were disqualified from running in July. As such, the default position was that they were able to serve one more year until 5th September 2021. The four continued to serve as LegCo members after the summer recess.
On 11th November 2020, the NPCSC passed the Decision on the eligibility of LegCo members (which will be discussed later in detail). The CE later confirmed that it was she who requested the NPCSC to clarify how LegCo members could be disqualified. She had done so because there was confusion over how members disqualified from seeking re-election could serve out their extended term.
As of today, the four disqualified members had not taken any legal action against the HKSAR government. They have neither sought judicial review nor election petition since their disqualification from running in July 2020.
What does the NPCSC’s decision state?
The Decision is divided into three parts:
A LegCo member does not fulfil the legal requirements of upholding the Basic Law if the member:
Advocates or supports “Hong Kong independence”;
Refuses to recognise the PRC’s sovereignty over Hong Kong and the exercise of sovereignty;
Solicits intervention by foreign or external forces in the HKSAR’s affairs; or
Carries out other activities endangering national security,
When the member is so decided immediately according to law, he or she is immediately disqualified from being a LegCo member.
2. The Decision applies to incumbent members whose nominations were decided to be invalid in accordance with law by the HKSAR during the nomination period for the election originally scheduled for 6th September 2020.
3. The disqualification of LegCo members pursuant to the above provisions is to be announced by the HKSAR government.
The constitutionality of the NPCSC’s Decision
First, it is important to note that since the four members have not taken any legal action against the HKSAR, the court has not issued any ruling on the Decision’s constitutionality. However, we can infer from case precedents and Basic Law provisions to evaluate the likelihood of its constitutionality.
Simply put, the question of constitutionality can be broken down into three questions:
Is the Decision legally binding on the HKSAR?
Is the Decision compatible with the Basic Law and common law principles?
Is the Decision amenable to judicial review?
A. Is it legally binding?
In the case of Leung Chung Hang Sixtus v. President of Legislative Councill, the court has affirmed the principle that all NPCSC decisions are legally binding on the HKSAR, because:
The NPCSC exercises the will of the people;
The NPCSC has the power to supervise the implementation of the PRC Constitution; and
The NPCSC is part of a sovereign body which authorised the establishment of the HKSAR and its governmental authorities.
Hence, following the judgment in the above case, the Decision is legally binding on the HKSAR.
B. Is it compatible?
To begin, we must first look at the Basic Law’s position on the qualification of LegCo members. According to Article 79 of the Basic Law, there are seven circumstances where a LegCo member is no longer deem to be qualified for the office. One of such circumstances is when a LegCo member is censured for misbehaviour or breach of oath by a vote of two-thirds of the members of LegCo present. Along with other circumstances, the power to disqualify a sitting member from office vests with the President of the LegCo.
On the other hand, the Decision provides an additional circumstance to the qualification of LegCo members. It states: If a member is decided not to have upheld the Basic Law according to law, that member is immediately disqualified. It also states that the disqualification is to be announced by the HKSAR government.
Hence, it is fair to say that the Decision is, on its face, incompatible with the Basic Law. There are three possible incompatibilities. The first incompatibility concerns who has the power to disqualify the LegCo members. It is written in the Basic Law that only the President of the LegCo has the power to do so, but the Decision re-allocates such power to the HKSAR government. In other words, the executive branch has assumed power of what is supposedly a power within the legislative branch.
The second incompatibility concerns due process. It seems like the Decision effects a change to Article 79 by adding a new circumstance to when a member is no longer qualified. But has this change followed the correct procedure in law? Article 159 of the Basic Law sets out the necessary procedures to amend the Basic Law. While the power to amend the Basic Law is vested in the NPCSC, the amendment bills have to obtain the consent of two-thirds of the deputies of the Region to the National People’s Congress (NPC), two-thirds of all members of the LegCo, and the CE. As the LegCo members did not consent on this matter, it does look like the NPCSC’s Decision has failed to comply with the necessary procedures in Article 159. While this might seem true, there is a need to distinguish an amendment bill from an NPCSC decision. The bill that was passed here was an NPCSC decision, not an amendment bill. As such, the NPCSC is, in theory, not obliged to follow Article 159. This is despite the fact that the content and purpose of the Decision is no different from amending Article 79.
The third incompatibility concerns with well-developed common law principle of procedural fairness. The general principle is that a higher standard of procedural fairness is required when one’s pre-existing legal benefit is taken away. For instance, an individual should be granted an opportunity to content the authority’s judgment before it demolishes his home, or should be entitled to a hearing before the motion of censure passed by the university. In this case, the NPCSC’s Decision states that a member is immediately disqualified when it is so immediately decided by the returning officer. In other words, so as long as the member is disqualified from running in the next election, his current office as a LegCo member would also immediately be invalid. The Decision is therefore not compatible with the principle of procedural fairness – the error is to treat the scope of procedural fairness for application cases and forfeiture cases precisely the same. Unlike application cases, the common law on forfeiture cases requires oral hearings and sufficient notice. It is a matter of equity and fairness, and this is what the four disqualified LegCo members should be entitled to. In the words of the Chair of Public Law at The University of Hong Kong Professor Johannes Chan, SC (Hon): “They still deserve a chance to speak before you fire them.”
C. Is it justiciable?
Given the extent of incompatibilities between the NPCSC’s Decision and the Basic Law, the crucial question, therefore, is whether the Decision can be subject to judicial review.
The short answer is no. In Leung Lai Kwok Yvonne v. The Chief Secretary for Administration and Ors, the plaintiff brought a case in court challenging the NPCSC’s Decision on issues relating to the selection of CE by universal suffrage. The court held that the NPCSC’s Decision is not subject to judicial review by the courts in Hong Kong, “as the court simply has no jurisdiction to do so”. This principle was reiterated in the case of Leung Chung Hung Sixtus v. President of Legislative Council, concerning another NPCSC Decision. The court held that they “have no power to determine whether the NPCSC Decision is invalid under Hong Kong Laws.”
Hence, following these case precedents, it is almost certain that this NPCSC Decision cannot be subject to judicial review.
D. Short summary
The Decision is legally binding on the HKSAR. Despite its apparent incompatibility with the Basic Law and the common law principle of procedural fairness, the Decision is not open for judicial challenge in Hong Kong. As such, the Decision can never be subject to any scrutiny by the Hong Kong courts. It can never be unconstitutional.
The constitutionality of the HKSAR government’s announcement
While the Decision cannot be challenged, it is entirely possible to launch a judicial challenge against the actions of the HKSAR government. The only potential ground for such judicial review is that the HKSAR government has not applied and interpreted the Decision correctly.
There issue here is whether the phrase ‘according with law’ is correctly interpreted. On the facts, the four LegCo members eligibility as candidates in the upcoming election was decided by the returning officer. Their eligibility was not decided by the court. The question is whether the government can treat the returning officer’s Decision as ‘according with law’ or whether it should be decided by the court.
The phrase ‘according with law’ seems to be referring to the statutory power conferred on the returning officer – the power to determine a candidate’s validity. This power was affirmed and interpreted broadly in the case of Chan Ho Tin v. Lo Ying Ki Alan & ORS, where the returning officer was allowed “to look at matters beyond the formal compliance of the nomination form.” To put simply, as the returning officer had the power to invalidate a candidate from running, the invalidations were, therefore ‘according with law’.
This interpretation could not be more evident in paragraph 2 of the Decision, where it explicitly states the following: “The Decision applies to incumbent members whose nominations were decided to be invalid in accordance with law by the HKSAR during the nomination period for the election originally scheduled for 6th September 2020.” The NPCSC was unambiguous in its meaning. It is a direct reference to the returning officer’s Decision to disqualify the four of them on 30th July 2020. It is ‘according with law’, because it is within the returning officer’s power to do so.
Hence, the phrase ‘according with law’ does not refer to a need for a final decision by the court. Given its explicit reference to the returning officer, the phrase seems to be referring to the statutory power conferred on the returning officers. This is what the HKSAR government has interpreted, and it is unlikely that it has misapplied the Decision.
Inasmuch as the Decision is incompatible with multiple provisions of the Basic Law and the common law principle of procedural fairness, it is legally binding on the HKSAR and can never be unconstitutional. It is also doubtful that the HKSAR government has applied the Decision wrongly. The Decision itself is superior to all three branches of government in Hong Kong; The executive has to carry out the Decision; the legislature has no power to amend or repeal the Decision; and the judiciary has no jurisdiction to examine and review the Decision.
This superiority highlights the complicated constitutional relations between the PRC and the HKSAR – tension exists between a decision made by the highest organ of state power and Hong Kong’s mini constitutional document. The Decision is nonetheless controversial because it calls the authority of the Basic Law into question. If the NPCSC can simply pass a decision on any matter, even if it means contravening some provisions of the Basic Law, what is then, the purpose of adopting a mini-constitution for Hong Kong? But more importantly, what does this mean for the rule of law in Hong Kong when it is impossible to put a check on the NPCSC’s power?
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.
 Decision of the Standing Committee of the National People’s Congress on the Addition to the List of National Laws in Annex III to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Twenty Third Session of the Standing Committee of the Thirteenth National People’s Congress on 11 November 2020)  The Government of the Hong Kong Special Administrative Region, 'HKSAR Government announces disqualification of legislators concerned in accordance with NPCSC's decision on qualification of HKSAR legislators' (Press Releases, 11 November 2020) <https://www.info.gov.hk/gia/general/202011/11/P2020111100779.htm?fontSize=1> accessed 29 November 2020  Kelly Ho, 'Hong Kong gov’t ousts four democratically-elected lawmakers from legislature' (Hong Kong Free Press, 11 November 2020) <https://hongkongfp.com/2020/11/11/breaking-hong-kong-govt-ousts-four-democratically-elected-lawmakers-from-legislature/> accessed 29 November 2020  The Government of the Hong Kong Special Administrative Region, 'HKSAR Government supports Returning Officers' decisions to invalidate certain nominations for Legislative Council General Election ' (Press Releases, 30 July 2020) <https://www.info.gov.hk/gia/general/202007/30/P2020073000481.htm?fontSize=1> accessed 30 November 2020  Decision of the Standing Committee of the National People’s Congress on the Addition to the List of National Laws in Annex III to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Twenty First Session of the Standing Committee of the Thirteenth National People’s Congress on 11 August 2020)  The government of the hong kong special administrative region, 'Decision on lawmaker criteria outlined' (Newsgovhk, 11 November 2020) <https://www.news.gov.hk/eng/2020/11/20201111/20201111_160654_095.html> accessed 3 December 2020  See supra note 1  Leung Chung Hang Sixtus v President of Legislative Council  HKCFI 2657  Ibid,  (5)  The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China Article 79  Ibid, Article 79 (7)  Ibid, Article 79  Ibid, Article 159  Cooper v Wandsworth Board of Works (1863) 143 ER 414  Ibid  Re JL Mitchell   胡家欣, '人大DQ｜陳文敏：程序涉政治取向 質疑如何依法' (香港01, 12 November 2020) <https://www.hk01.com/%E7%A4%BE%E6%9C%83%E6%96%B0%E8%81%9E/547863/%E4%BA%BA%E5%A4%A7dq-%E9%99%B3%E6%96%87%E6%95%8F-%E7%A8%8B%E5%BA%8F%E6%B6%89%E6%94%BF%E6%B2%BB%E5%8F%96%E5%90%91-%E8%B3%AA%E7%96%91%E5%A6%82%E4%BD%95%E4%BE%9D%E6%B3%95> accessed 30 November 2020  Leung Lai Kwok Yvonne v. The Chief Secretary for Administration and Ors HCAL 31/2015  Ibid   Leung Chung Hang Sixtus v President of Legislative Council  HKCFI 2657  Ibid,   Chan Ho Tin v. Lo Ying Ki Alan & ORS  HKCFI 345  Ibid,   See supra note 7.