Full text: Explanations on draft interpretation of Article 104 of Basic Law of Hong Kong SAR(1)

The Standing Committee of the twelfth National People's Congress on Monday adopted the interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China at its twenty-fourth Session.

Following is the full text of the explanations on the draft interpretation.

EXPLANATIONS ON THE DRAFT INTERPRETATION BY THE STANDING COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS OF ARTICLE 104 OF THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE'S REPUBLIC OF CHINA

On 5 November 2016 at the Twenty-fourth Session of the Standing Committee of the Twelfth National People's Congress

Zhang Rongshun, Vice-Chairman, Legislative Affairs Commission of the Standing Committee of the National People's Congress

Chairman, Vice-Chairmen, Secretary-General, Members:

On the instruction of the Council of Chairmen, I now provide explanations on the Draft Interpretation by the Standing Committee of the National People' s Congress of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People' s Republic of China (hereinafter referred to as "the Draft Interpretation").

In recent years, some people of the Hong Kong society openly advocate the notion of "Hong Kong Independence" or notions of the same nature, such as "the independence of Hong Kong", "Hong Kong national self-determination," etc. which have caused grave concern, anxiety and anger among people of the whole country, including the vast majority of Hong Kong residents. The inherent nature of "Hong Kong Independence" is secession. Words and conduct advocating "Hong Kong Independence" seriously contravene the policy of "one country, two systems", seriously contravene the Constitution of the country, the Basic Law of the Hong Kong Special Administrative Region of the People' s Republic of China (hereinafter referred to as "the Hong Kong Basic Law") and the relevant legal provisions of the Hong Kong Special Administrative Region (hereinafter referred to as "the HKSAR"), seriously undermine national unity, territorial integrity and national security, and also have a serious impact on the long-term prosperity and stability of Hong Kong.

In the course of the election for the sixth Legislative Council, some people advocating "Hong Kong Independence" submitted nominations as candidates. The Returning Officers of the HKSAR decided the nominations of six of those people openly advocating "Hong Kong Independence" as invalid in accordance with law. On 12 October, at the oath taking ceremony of newly elected members of the Legislative Council, certain members-elect, without authority, altered the wording of the oath or added other contents to the oath, intentionally advocated the notion of "Hong Kong Independence", and insulted the country and the nation. Their oaths were thus determined by the person administering the oath as invalid. There have been differences of opinion and controversies over the validity of the oath mentioned above, and as to whether retaking of the oath should be arranged, within the Hong Kong society and even within the Legislative Council, and between the Legislative Council and the HKSAR Government. The normal operation of the Legislative Council has thereby been affected.

In view of the above circumstances, and in consideration of the fact that the relevant controversies involve the correct understanding and implementation of the relevant provisions of the Hong Kong Basic Law, in order to effectively combat and suppress "Hong Kong Independence" activities; safeguard national sovereignty and territorial integrity; protect Hong Kong residents' fundamental interests, and the prosperity and stability of the HKSAR, the Council of Chairmen of the National People's Congress Standing Committee (hereinafter referred to as "NPCSC") has submitted the Draft Interpretation, under the provisions of Article 67(4) of the Constitution regarding the power of the NPCSC to interpret laws and the provisions of Article 158(1) of the Hong Kong Basic Law which provide that "the power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress". In accordance with Article 158(4) of the Hong Kong Basic Law, the Committee for the Basic Law of the Hong Kong Special Administrative Region under the Standing Committee of the National People's Congress has been consulted on the Draft Interpretation. I will now provide explanations on the Draft Interpretation as follows.

1. To uphold the Hong Kong Basic Law and to bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China are the legal requirements and preconditions for standing for election in respect of or taking up the relevant public offices in the Hong Kong Special Administrative Region.

In June 1984, Comrade Deng Xiaoping clearly pointed out, "There must be a limit and standard for Hong Kong people administering Hong Kong, that is, the main body of Hong Kong people administering Hong Kong must be patriots". As to who is a patriot, Comrade Deng Xiaoping pointed out that, "The standard required of a patriot is to respect his or her own nation, and to sincerely and faithfully support the motherland's resumption of exercise of sovereignty over Hong Kong, and not to impair Hong Kong's prosperity and stability." The principle that the main body of Hong Kong people administering Hong Kong are to be patriots runs through the requirements regarding the Chief Executive, and the composition of executive authorities, the legislature, and the judiciary stipulated in the Hong Kong Basic Law. One of those important requirements is: the Chief Executive, principal officials, members of the Executive Council, members of the Legislative Council, judges of the courts at all levels, and other members of the judiciary must uphold the Hong Kong Basic Law of the Hong Kong Special Administrative Region of the People' s Republic of China and bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China. In the course of the drafting of the specific provisions of the Hong Kong Basic Law, this requirement was combined with the prevailing regime on oath taking upon assumption of office in Hong Kong to form the provisions of Article 104 of the Hong Kong Basic Law, namely, "When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region 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." Therefore, "to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China" and to bear "allegiance to the Hong Kong Special Administrative Region of the People's Republic of China" as stipulated by Article 104 of the Hong Kong Basic Law, are the legal content which must be included in the oath prescribed by the Article, as well as the legal requirements and preconditions for standing for election in respect of or taking up the public office specified in the Article. (mo