NPCSC Clarifies “Allegiance” Requirements for Hong Kong Legislators, Disqualifies Pro-Democracy Legislators

The NPC Standing Committee (NPCSC) adopted on Wednesday, November 11 a decision on the qualifications for members of the Hong Kong Legislative Council (LegCo), resulting in the immediate disqualification of four pro-democracy legislators: Alvin Yeung, Kwok Ka-ki, Dennis Kwok, Kenneth Leung. These four incumbents have been banned from running in next year’s elections for the 7th LegCo, but until today have been allowed to stay on after the NPCSC extended the 6th LegCo’s term for a year.

The decision purports to rely on a host of legal authorities, including multiple provisions of the P.R.C. Constitution, the Hong Kong Basic Law, the NPC’s May 2020 decision on safeguarding national security in Hong Kong, the Hong Kong National Security Law (HKNSL), and the NPCSC’s 2016 interpretation of Article 104 of the Hong Kong Basic Law. Citations to the Constitution suggest that the NPCSC was exercising its authority to interpret and oversee the implementation of the Constitution—specifically, the constitutional requirements that Chinese citizens “safeguard the unification of the country” (art. 52) and “safeguard the security, honor, and interests of the motherland” (art. 54).

The most crucial pre-existing legal rule is Article 104 of the Hong Kong Basic Law. It requires that all LegCo members (among other public officials) take an oath to “uphold the Basic Law” and “swear allegiance to the Hong Kong Special Administrative Region [HKSAR]” before assuming office. As interpreted by the NPCSC in 2016, the quoted language is part of “the legal requirements and preconditions” [法定要求和条件] for running for or assuming the office of a LegCo member. A related rule is article 35 of the HKNSL, which disqualifies anyone who has been convicted of a crime under that Law from running for or assuming the office of a LegCo member.

The decision today has the effect of both (1) expanding upon the NPCSC’s interpretation of Article 104 and (2) supplementing article 35 of the HKNSL. It enumerates several acts that would constitute violations of the “legal requirements and preconditions” for serving as LegCo members—acts that are deemed detrimental to national security but do not constitute crimes under the HKNSL. They include:

  • advocating or supporting the notion of “Hong Kong independence”;
  • refusing to recognize China’s sovereignty or exercise of sovereignty over Hong Kong;
  • seeking foreign or overseas forces to interfere in Hong Kong affairs; and
  • otherwise endangering national security.

A LegCo member who is “determined according to law” to have violated these prohibitions will be immediately disqualified—even if the determination is made during a proceeding that before today would not affect that member’s current membership (e.g., nomination for the next election).

The decision then expressly applies this rule to the four incumbent legislators who have been disqualified from the next election for engaging in one or more of the prohibited acts. They were thus immediately removed.

The Hong Kong Chief Executive explained at a press conference on Wednesday afternoon that this decision does not create any new path for the government to disqualify legislators. Rather, it merely gives the government the ministerial duty to announce disqualification decisions already made under pre-existing procedures (such as the Legislative Council Ordinance), but according to the new criteria laid down by the decision today.

(The decision’s use of the character “等” after the list of prohibited acts leaves open the possibility that other acts could later be deemed inconsistent with LegCo members’ obligations to “uphold the Basic Law” and “swear allegiance to the HKSAR.”)

The NPCSC also approved an amendment to the Copyright Law [著作权法] and the Veterans Support Law [退役军人保障法] on Wednesday. We will cover these bills separately.

With contribution by Taige Hu

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