The political project known as 35-plus has stated that its immediate election aim is to gain a majority in the coming Legislative Council election (35 seats or more) then vote down the Hong Kong Special Administrative Region Budget twice, if possible, to force the resignation of the chief executive under Article 51 and Article 52(3) of the Basic Law. The ultimate aim is to force the HKSAR government (under an expected new chief executive) and Beijing to accept their stipulations for “true democracy” reform — or face a “burn together” option. This project is grounded in the “five demands” campaign arising from Hong Kong’s horrific months of political violence, which began in June 2019.

It is argued that this political scheme is compliant with the Basic Law because these Basic Law articles allow the core of this strategy (often called “a denial of supply”) to be adopted and applied.

A question which is rarely asked, however, is — what is the purpose of these articles in the Basic Law? Were these articles put in the Basic Law, among other things, to allow the application of a brazen plan to stop all government funding so as to paralyze normal governance, in order to compel political change through legalized, financial intimidation?

Professor Yash Ghai discusses these Basic Law articles in his seminal book Hong Kong’s New Constitutional Order. In Chapter 7, he envisages possible disputes between LegCo and the HKSAR government over taxation rates or certain public expenditures, which could give rise to resort to these Basic Law provisions. Nowhere in his review of these articles does he foresee that they might be used as a very powerful indirect means of forcing policy changes unrelated to the budget.

We saw, in 2019, how LegCo was rendered inoperable due to massive riot-driven vandalism for about three months from July 1. Then, once it reopened, it was brought close to a functional standstill for many more months as a result of opposition procedural manipulation.

The organizers of the 35-plus project insist that what is planned is permitted within the letter of the Basic Law. They do not argue that this action is in keeping with the spirit of the Basic Law, because it is not

Building on this grim track record, it is now energetically proposed that, if an opposition majority can be secured in the coming election, that LegCo majority can be used (according to Professor Benny Tai Yiu-ting, who has done most to devise the 35-plus project) as “the most lethal constitutional weapon”.

In 1975, in Australia, a similar funding blockage was used to force the sacking of the then-prime minister, Gough Whitlam. The upper house in the Federal Parliament, the Senate, “denied supply” (that is, refused to pass the budget) to the government led by Whitlam. As the BBC recently noted, this was seen in Australia as a “Constitutional Coup” by a range of commentators because a constitutionally improper means was used to compel a profound political change.

The organizers of the 35-plus project insist that what is planned is permitted within the letter of the Basic Law. They do not argue that this action is in keeping with the spirit of the Basic Law, because it is not. What is being proposed is an exercise of powers created by the relevant provisions which will exploit those powers so that they can be used well beyond the framework of their recognized normal purpose. 

Consider a more day-to-day example: If safety officers are authorized to issue notices demanding that unsafe outside advertising signs be dismantled, that is the purpose of such a power. If a safety officer issues dismantling demands — claiming they are just using their authorized power — because they do not like the product advertised, this is not within that purpose.

Although there is an argument that the proposed reckless misapplication of these provisions is within the letter of the Basic Law, using them in this way could acutely undermine the institutional integrity of LegCo. At the same time, the elementary constitutional order of the HKSAR would be jeopardized.

There is already discussion about the legitimacy of the “primary-election” aspect of the project under the Elections (Corrupt and Illegal Conduct) Ordinance.

Potentially more significant is the fact that the aims of the 35-plus project raise the prospect of the Standing Committee of the National People’s Congress considering, under Article 158 (the interpretation provision), whether Basic Law provisions governing the operation of LegCo can be used in ways which may significantly undermine the proper operation of that key component of Hong Kong’s constitutional system. Next there is the possibility of a separate or parallel interpretation under Article 65 of the new National Security Law to establish what, if any, breaches of that law might arise if this project to turn LegCo into a lethal constitutional weapon were to be implemented.

The supporters of the 35-plus project have firmly relied on a shrewd literal reading of the relevant Basic Law provisions. In this way, addressing the pivotal question of purpose has been avoided. They can scarcely be surprised, however, if those opposed to this dangerous project also seek to rely on powerful legal arguments in response.

The author is a visiting professor in the Faculty of Law, the University of Hong Kong.

The views do not necessarily reflect those of China Daily.