24th Session Watch Pt. 3: NPCSC to Interpret the HKSAR Basic Law—Again? (UPDATED)

Update 2: It has been confirmed that the Chairmen’s Council has put the interpretation which it itself proposed on the agenda of the 24^th Session. Article 104 of the Basic Law will be interpreted.

Update 1: On Thursday, no news regarding the rumored Basic Law interpretation came out of the NPCSC, which seemed to have followed its usual schedule. However, it just came to your author’s attention that the agenda for this Session contains an item named “Others (其他)”—an apparent placeholder that hasn’t appeared in the agenda of any other 12^th NPCSC session. According to the daily schedule, this mysterious item is set to be heard at the plenary meeting on Saturday morning, along with several other reports. We’ll know what “Others” stand for by Saturday night at the latest.

It seems that the 24^th Session has just gotten more exciting. Multiple news reports (SCMP and HKPS) that surfaced late Tuesday night cited sources claiming that the NPCSC would on Thursday consider a proposed interpretation of the Basic Law of the Hong Kong Special Administrative Region (Basic Law), in connection with the recent controversial oaths of office taken by two members-elect of Hong Kong’s legislature. If the reports prove to be true, this will then be the NPCSC’s fifth interpretation of the city’s mini-constitution. The following is a primer on this (unconfirmed) interpretation in Q&A format.

When and what were the NPCSC’s previous interpretations of the Basic Law?

1. 1999 Interpretation on the right of abode. At the request of the Hong Kong (HK) Chief Executive (CE), which was relayed by the State Council, the NPCSC issues an interpretation of Article 22, Paragraph 4 and Article 24, Paragraph 2, Item 3 of the Basic Law, making it clear that for a person born outside Hong Kong to be eligible for the right of abode in the city, at least one of his/her parents must be a permanent resident of Hong Kong at the time of his/her birth. This Interpretation overturned a prior ruling of the HK Court of Final Appeal. (Full text in Chinese and English (PDF). Explanation in Chinese.)
2. 2004 Interpretation on issues related to universal suffrage. Largely on its own initiative, the NPCSC adopted an interpretation of two provisions in Annexes I and II to the Basic Law, barring the HK Legislative Council from changing the methods for choosing the CE and its own members. The Interpretation also, in effect, required additional procedural steps, i.e., obtaining the NPCSC’s approval, before any such change can be made. (Full text in Chinese and English (PDF). Explanation in Chinese.)
3. 2005 Interpretation on the CE’s term of office. After former CE Tung Chee-hwa resigned in the middle of his second term, the State Council, acting on behalf of the Acting CE Tsang Yam-kuen, requested that the NPCSC decide whether the Acting CE would serve only the remainder of his predecessor’s term or a full five-year term. In interpreting Article 53, Paragraph 2 of the Basic Law, the NPCSC agreed with the former position. (Full text in Chinese and English (PDF). Explanation in Chinese. Opinion of the NPCSC HKSAR Basic Law Committee in Chinese.)
4. 2011 Interpretation on state immunity. In order to decide a case brought by an American company against, among others, the Democratic Republic of Congo, the HK Court of Final Appeal asked the NPCSC whether China’s policy on state immunity applies to Hong Kong, thereby depriving HK courts of jurisdiction over this case. The NPCSC responded affirmatively in its interpretation of Article 13, Paragraph 1 and Article 19 of the Basic Law. (Full text in Chinese and English (PDF). Explanation in Chinese and English (PDF).)

What entities can petition the NPCSC for an interpretation of the Basic Law?

The answer to this question has several parts.

1. Under Article 158, Paragraph 3 of the Basic Law, HK courts, in adjudicating cases, are required to seek from the NPCSC, through the Court of Final Appeal, an interpretation of relevant provisions of the Basic Law “concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and [Hong Kong], and if such interpretation will affect the judgments on the cases.”
2. When viewed simply as a national law like any other laws passed by the NPC, the Basic Law is also subject to relevant provisions of the Legislation Law governing legislative interpretation by the NPCSC. Under Article 46 of the Legislation Law, the following entities may submit proposals for legislative interpretations: the State Council, the Central Military Commission, the Supreme People’s Court, the Supreme People’s Procuratorate, special committees of the NPC, and the standing committees of provincial-level people’s congresses.
3. Notwithstanding the legal provisions cited above, the NPCSC can also propose and adopt legislative interpretations on its own initiative, pursuant the authority granted to it by both the Constitution and the Basic Law.

Which entity has likely submitted a proposal for an interpretation this time?

Update: According a press release carried by Xinhua, it was the Chairmen’s Council that submitted such a proposal.

Assuming that there is going to be an interpretation, the most likely candidate would be the NPCSC itself. The request is certainly not from the HK Judiciary. Nor is it likely from the HK Government, because otherwise there wouldn’t have been no news report until yesterday. The State Council is also ruled out because there is no precedent for it to act on its own without any call for assistance from the HK Government. Plus, as said above, there isn’t really any restriction on the NPCSC’s exercise of its power to interpret laws.

What articles of the Basic Law are being interpreted?

Update: The article that will be interpreted is Article 104.

It’s not know definitively at this point, though news reports suggested that Articles 26 and 104 of the Basic Law will be interpreted this time. Relevant parts of the two article are reproduced below:

Article 24: Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law.

Article 104: When assuming office, […] members of the Executive Council […] 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.

Why there might NOT be such an interpretation?

The following conjectures are based purely on procedural grounds.

1. It’s simply not on the agenda of this NPCSC session. According to the media, the oath-taking controversy was discussed by the Communist Party members attending the recently concluded six plenum, which ran from October 24 to 27. Even if the controversy only became an issue for the Party and the interpretation was only planned for the 24^th Session after the six plenum, it still doesn’t explain why the interpretation failed to be included in the final agenda of the current session, which started in October 31, three days (including one working day) after the six plenum.
2. There won’t be any plenary meeting on Thursday. Media reports pinpoint Thursday as the day when the interpretation will be discussed. However, according to the daily schedule of this NPCSC session, on Thursday there won’t be any plenary meetings, which are the only occasions where NPCSC members hear the explanations of any new bills submitted. The next plenary meeting is scheduled for Wednesday afternoon, and the following one for Saturday morning. Nevertheless, there is a still the possibility that an additional plenary meeting might be schedule for Thursday or that the draft interpretation could be considered at either of the next two plenary meetings.

When can we know if there is indeed an interpretation? And if there is, when can we see the full text?

Xinhua will report on the interpretation in the coming days if there is one. For the full text, one has to wait until the afternoon of November 8 at the earliest.

Thanks for reading and this Blog will keep our readers updated.