The decision of the Standing Committee of the National People’s Congress (NPCSC) on November 11 provides guidance on the legal consequences of a Legislative Council member’s failure to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (PRC) and swear allegiance to the Hong Kong SAR of the PRC.

The Government made the remarks in response to a statement by the Law Society of Hong Kong on the disqualification of lawmakers.

It said four members of the sixth-term LegCo, namely Alvin Yeung, Kwok Ka-ki, Dennis Kwok and Kenneth Leung, had submitted nominations to run for the 2020 LegCo General Election originally scheduled for September 6.

Their nominations were invalidated by Returning Officers, who found that all four members solicited intervention by foreign governments or political authorities in relation to the Hong Kong SAR’s affairs.

Alvin Yeung, Kwok Ka-ki and Dennis Kwok also expressed an intention to indiscriminately vote down any legislative proposals, appointments, funding applications and budgets introduced by the Hong Kong SAR Government after securing a majority in LegCo to force the Government to accede to certain political demands.

The Returning Officers were of the view that these four people’s behaviour was not in compliance with the declaration requirement under section 40(1)(b)(i) of the LegCo Ordinance (Cap 542).

Due to the severe epidemic situation of COVID-19, the Hong Kong SAR Government announced on July 31 that the 2020 LegCo General Election would be postponed for a year.

To resolve the problem of a lacuna in the legislature arising from the postponement, the NPCSC decided on August 11 that the sixth-term LegCo will continue to discharge its duties for no less than a year until the commencement of the seventh-term LegCo.

That decision only focused on the handling of the continued operation of the sixth-term LegCo and did not touch on whether individual members would be able to stay or not.

As the Returning Officers had determined that the four former LegCo members were not genuinely upholding the Basic Law and honouring the pledge of allegiance to the Hong Kong SAR of the PRC, they must bear legal responsibility in accordance with the law as set out in the interpretation of Article 104 of the Basic Law made by the NPCSC on November 7, 2016.

That interpretation stated that if a person, after taking the oath, engages in conduct in breach of the oath, the person shall bear legal responsibility in accordance with the law.

As the issue involves the NPCSC’s August 11 decision and the interpretation, the Hong Kong SAR Government could not make a decision on its own and therefore requested the Central People’s Government to invite the NPCSC to resolve the problem from a constitutional perspective.

The NPCSC’s decision of November 11 has provided clear guidance on the legal consequences of a LegCo member’s failure to comply with the legal requirements of upholding the Basic Law and swearing allegiance to the Hong Kong SAR of the PRC and helps ensure the resolute and faithful implementation of “one country, two systems”.

The Hong Kong SAR Government added it fully recognises that the rule of law is the cornerstone of Hong Kong’s long-term prosperity and stability and is determined to safeguard this core value at all times.