（please scroll for English version）
a. 該決定欠缺憲制基礎。人大常委會聲稱只需由它作出一項「決定」，就可實際上立法規管香港本地事務，而且不受任何約束，不需問責，毋須理會法律確定性的原則，對《基本法》和《中英聯合聲明》確立的「一國兩制」制度視若無睹，更可超越《基本法》條文中清晰列明的憲法限制 。
5) 在該決定後舉行的記者招待會中，行政長官（「特首」）聲稱「人大常委會的法律決定多年來已經在法庭認定對於特區來說是具有法律約束力」，實為誤導。 在2018年12月有關一地兩檢安排的司法覆核案件 (HCAL 1160/2018) 中，高等法院的確有考慮人大常委會決定於本港的法律效力，但指出此等事宜影響深遠，並明確指出不就人大常委會決定的法律地位或效力作任何判決，留待將來法院再作考慮（第61段）。
【Statement of the Progressive Lawyers Group on the Decision of the Standing Committee of the National People’s Congress To Disqualify Legislators】
1) On 11 November 2020, the Standing Committee of the National People’s Congress (“NPCSC”) issued a decision that members of Hong Kong’s Legislative Council (“LegCo”) who endanger national security shall be disqualified as lawmakers (the “Decision”). Shortly thereafter, the HKSAR Government announced the expulsion of four pro-democracy legislators from LegCo.
2) The Decision states that :
(a) Members of LegCo shall be ineligible to hold seats in LegCo once they are determined by law to have advocated for or supported the independence of Hong Kong; refused to recognise China’s exercise of sovereignty over Hong Kong; solicited foreign interference in Hong Kong affairs; or engaged in other acts that jeopardise national security.
(b) The Decision is applicable to those nominees disqualified from running in the postponed LegCo elections which were originally to be held on 6 September 2020.
It also henceforth applies to persons running for, or holding, a seat in LegCo.
(c) Those disqualified from membership of LegCo by reason of the above will be announced by the Government of the Hong Kong Special Administrative Region.
3) Shortly after the Decision was published, the HKSAR Government announced that four pro-democracy legislators, namely Alvin Yeung, Dennis Kwok, Kwok Ka-ki and Kenneth Leung were immediately disqualified. The purported basis was that these legislators’ nominations were decided to be invalid by Returning Officers (“RO”) during the nomination period of the LegCo elections originally scheduled for 6 September 2020.
4) The Decision and the pursuant disqualifications have at least the following far-reaching legal implications:
(a) There is no constitutional basis for the Decision. The NPCSC purports that it can, without restraint, accountability or legal certainty, legislate and govern the domestic affairs of Hong Kong under the name of a “decision”, disregarding the “One Country Two Systems” principle of the Basic Law and the Sino-British Joint Declaration, and contrary to clear constitutional restrictions in the provisions of the Basic Law ;
(b) Any possible remedy from the judicial system will be circumvented arbitrarily: the ousted four lawmakers have not yet been able to file any election petition to challenge the disqualification decision made by the RO, because it is a precondition that an election is held before a challenge can be made. There has been no election as the Hong Kong government has postponed it for at least a year to 2021 under the emergency law. The Decision of the NPCSC has the effect of depriving lawmakers’ right to participate in public life and simultaneously deprived them of their right to seek remedy from the courts;
(c) The effect of the Decision on future elections is unknown, in particular whether ousted lawmakers are permanently barred from running in any LegCo elections in the future, despite the lack of constitutional basis in the Basic Law for such a permanent bar.
5) The Chief Executive (“CE”), in her press conference held after the Decision was announced, claimed that the decisions of the NPCSC have long been acknowledged by the Hong Kong courts as legally binding on Hong Kong . This claim is misleading. In the judicial review concerning the co-location arrangement ruled in December 2018 (HCAL 1160/2018), the legal effect of an NPCSC decision was considered and the court acknowledged that such issue would have far reaching implications, expressly made no finding on the status and legal effect of an NPCSC decision and reserved the matter for a future court to consider (para 61).
6) The PLG expresses profound regret over the Decision. The principles in the Basic Law and the fundamental rights guaranteed by it have, sadly, rapidly been eroded. The people of Hong Kong have helplessly witnessed the promise of “high degree of autonomy” become empty rhetoric. While the political landscape is disheartening, the PLG calls on the general public to remain faithful in their insistence on the principles of the rule of law, despite the repeated assaults to those principles. The circumvention of the Basic Law through the Decision and the Government’s actions after the Decision is yet another such assault. However, it is all the more reason for citizens to insistently pursue the rule of law.
The Progressive Lawyers Group
14 November 2020
: Original Chinese text. No official English version of the Decision is currently available, and a translation from the Chinese text is used below.
: See the provision for disqualification of legislators in limited specified circumstances only, set out in Article 79 of the Basic Law.
: Original Chinese: 「我們今日正正就是在《基本法》實施過程中又遇到一個憲制性問題，全國人大常委會是依法幫我們處理，而它的法律決定多年來已經在法庭認定對於特區來說是具有法律約束力，是有堅實的基礎，是立足明確，亦是不容挑戰的。」