How a Hong Kong Democracy Fight May Get Settled in Beijing: Q&A

(Bloomberg) -- A Hong Kong court heard a case on Thursday that could have lasting ramifications for the former British colony's relationship with China.

The city's Beijing-backed chief executive last month asked the courts to intervene in the democratically elected legislature and oust two pro-independence lawmakers. The case took on added significance after the South China Morning Post and other media outlets reported that China's parliament may exercise a little-used power to interpret the city's Basic Law, potentially preempting the court and deciding the issue for Hong Kong.

That prospect drew warnings this week from lawyers and other defenders about the “high degree of autonomy” China promised the city before resuming its rule almost two decades ago. “The irreparable harm it will do to Hong Kong far outweighs any purpose it could possibly achieve,” the Hong Kong Bar Association said Wednesday.

How did the dispute arise?

Hong Kong's Basic Law, the “mini-constitution” drafted in consultation with the British, declares the city an “inalienable part” of China and requires lawmakers to swear an oath to uphold the law. Sixtus Leung, 30, and Yau Wai-ching, 25 -- among a new crop of “localist” lawmakers elected in September -- had their oaths voided Oct. 12 after they mispronounced the country's name and unfurled banners proclaiming “Hong Kong IS NOT China.” When the Legislative Council president announced a do-over, Chief Executive Leung Chun-ying sued to block the move and vacate their seats.

What's the argument?

The case is about the limits of Hong Kong's tolerance for dissent. Sixtus Leung and Yau are the most prominent members of a more confrontational democracy movement that emerged after mass protests two years ago failed to win concessions, with some even advocating independence -- a red line for China. The Hong Kong government blocked some like-minded candidates from running because their views violated the Basic Law. Now, the city's leader is asking the Court of First Instance to affirm that stance by barring Sixtus Leung and Yau from taking their seats.

What might happen in court?

The court could side with the government and essentially void the ballots that almost 58,000 voters cast for the localist pair. But judges are often reluctant to referee fights within another “sovereign branch” of government. In 2013, the Hong Kong High Court declined to overrule the legislative president's decision to halt a filibuster, saying “alleged irregularities in the conduct of legislative business are a matter for the legislature alone.” In any case, the loser would probably appeal. The process could drag on, disrupting the legislature and dominating campaigns for the city's chief executive election in March.

How can China step in?

The Basic Law gives the Communist Party a powerful escape clause. At any time, the National People's Congress in Beijing can step in and interpret sections deemed unclear. Doing so is controversial, as it represents direct intervention in local affairs. The NPC Standing Committee has offered four interpretations since the handover of power, and hasn't done so without a local request since 2004. The city government and several prominent pro-establishment leaders, including Rita Fan -- the NPC Standing Committee's only Hong Kong member -- have argued the city could resolve the dispute locally. The NPC Standing Committee is led by Zhang Dejiang, the No. 3 member of the Communist Party, and is different from the supreme party panel led by President Xi Jinping.

What action is China considering?

It's unclear. The Standing Committee meets behind closed doors and the Hong Kong case wasn't on its public agenda. A Hong Kong government lawyer told the court Thursday that the city hadn't received a response to inquires on whether any discussions were planned in Beijing. When asked Tuesday whether the central government would intervene, Leung Chun-ying said only that he couldn't rule out the possibility.

What's at stake?

Hong Kong ranks 16th globally on the World Justice Project's Rule of Law Index, compared with 18th for the U.S. and 80th for the rest of China. The government cites an independent judiciary as a major reason more than 1,350 non-local companies have set up regional headquarters in the city. Intervention could shake confidence in that system, said Alvin Cheung, a researcher at New York University School of Law's U.S.-Asia Law Institute and a former Hong Kong lawyer. “The big risk is that the perception will be that the judiciary simply doesn't matter when it comes to any public law question of any importance,” Cheung said.

To contact the reporter on this story: David Tweed in Hong Kong at dtweed@bloomberg.net. To contact the editors responsible for this story: Daniel Ten Kate at dtenkate@bloomberg.net, Brendan Scott