Democrats’ plan to veto the budget was constitutionally allowed under Hong Kong’s Basic Law, a legal scholar has said, a day after 45 pro-democracy figures were jailed for conspiring to commit subversion over the scheme.
Legal scholar Johannes Chan. Photo: Catherine Lai/HKFP.
The remarks came after the city’s largest national security case came to a close on Tuesday, with 45 democrats given jail sentences ranging from four years and two months up to 10 years. The group was convicted of taking part in a conspiracy to commit subversion under the national security law for their involvement in a primary election in July 2020 that aimed to help the pan-democrats seize a majority in the upcoming Legislative Council elections.
The court ruled that the democrats, had they won a majority, had intended to abuse their powers to “indiscriminately veto the government budget” and force the chief executive to resign. This would have plunged the city into a “constitutional crisis,” the panel of three national security judges ruled.
Talking on Commercial Radio on Wednesday, former chair professor of law at the University of Hong Kong Johannes Chan said it was common practice in democracies to use vetoing a budget as a way to push for a change of government policy, and that the design of Basic Law had allowed for it.
People queue outside the West Kowloon Law Courts Building on November 19, 2024, ahead of the sentencing hearing for 45 pro-democracy figures in Hong Kong’s largest national security case to date. Photo: Kyle Lam/HKFP.
“Regardless of whether a budget is vetoed indiscriminately, the act will have consequences… and therefore the Basic Law empowers the chief executive to disband the legislature if a budget has been rejected,” Chan said in Cantonese.
According to the Basic Law, if the chief executive refuses to sign a bill passed by the Legislative Council, or the Legislative Council refuses to pass a budget or any other important bill introduced by the government, and if a consensus cannot be reached after consultations, the chief executive may dissolve the Legislative Council.
Ultimately, the chief executive must resign if the legislature is dissolved because it refuses to pass a budget or any other important bill, and a new Legislative Council still refuses to pass the original disputed bill.
Hong Kong lawmakers resume the debate on a proposed domestic security law required under Article 23 of the Basic Law on March 19, 2024. File photo: Kyle Lam/HKFP.
According to the Beijing-imposed national security law, any person found to have severely interfered in, disrupted, or undermined the performance and duties of the Hong Kong government will be find guilty of subversion.
When asked by the radio show host if the 45 democrats had severely interfered with or disrupted the government’s ability to carry out its duties, Chan said: “If we view it from that perspective, it would leave the design of the Basic Law futile.”
Reasons for sentence
Speaking about the sentencing of the 45 democrats on Tuesday afternoon, security chief Chris Tang said the jail terms reflected the “severity” of the democrats’ offences. He added that the government would consider whether to appeal for longer sentences for certain democrats after studying the judgement.
Benny Tai in a demonstration held on January 1, 2019. Photo: Etan Liam, via Flickr.
The security law stipulates three categories of offenders, with “principal offenders” facing at least 10 years of penalty and a maximum penalty of life imprisonment. An “active participant” could be sentenced to three years to 10 years in jail, while “other participants” will see a penalty of up to three years in jail.
According to the court’s judgement, legal scholar Benny Tai, former legislator Au Nok-hin, ex-district councillor Andrew Chiu, and ex-district councillor Ben Chung were considered “principal offenders,” by the judges. They were each set a sentencing starting point of 15 years.
However, while Tai was jailed 10 years, Au, Chiu and Chung – each of whom had acted as a witness for the prosecution – received jail terms from six years and one month to seven years, below the minimum 10 years stipulated for a principal offender.
Ex-lawmaker Au Nok-hin. Photo: Au Nok-hin, via Facebook.
The judges said in the judgement that as the democrats faced “only a conspiracy charge,” the penalty band stipulated by the security law would “not be strictly applicable.”
Chan said he thought the possibility of appealing for longer sentences would be low as the judges had already made reference to the three tiers of sentencing in the judgement.
