A retrospective law which retroactively punishes someone for an act that was legitimate when performed violates two major principles of the rule of law — predictability and certainty. This has for a long time been frowned upon by most law experts in various civilized countries. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights provide that no person be held guilty of any criminal law that did not exist at the time of offence nor suffer any penalty heavier than what existed at the time of offence. Retroactivity means that an act of today contravenes a law of the future, and that law will travel back in time to punish the performer of the act. A retrospective law which retroactively punishes someone for an act that was legitimate when performed violates two major principles of the rule of law — predictability and certainty. This has for a long time been frowned upon by most law experts in various civilized countries. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights provide that no person be held guilty of any criminal law that did not exist at the time of offence nor suffer any penalty heavier than what existed at the time of offence. Retroactivity means that an act of today contravenes a law of the future, and that law will travel back in time to punish the performer of the act.
In November last year, National People’s Congress Standing Committee reinterpreted the Basic Law over the oath-taking of localist and pro-democracy Hong Kong Legislative Council (Legco) members in October last year. When the six dissident, democratically elected Legco members (Sixtus Leung Chung-hang, Yau Wai-ching, Lau Siu-lai, Nathan Law Kwun-chung, Leung Kwok-hung, Yiu Chung-yim) — now disqualified — took their oaths and used the occasion as a platform of protest, shouting slogans or holding objects, something which opposition law-makers had done with impunity since 2004, they could not have foreseen that Communist China was going to reinterpret the Basic Law and cause the Hong Kong court to disqualify them for their act of oath-taking. Even Albert Chen Hung-yee, a constitutional law professor from the University of Hong Kong, considers this possibly unfair.
A retrospective punitive law is extremely dangerous and terrifying. For example, you advocated self-determination or independence for Hong Kong in 2016. When laws are enacted to give effect to Article 23 of the Basic Law (which forbids acts of treason, secession, sedition and subversion of Beijing Government), you may be convicted of secession for what you said in the past and sent to jail for a number of years. Furthermore, all the one million Hongkongers who took part in the Umbrella Revolution in 2014 and 2015 may be retroactively penalized for treason and subversion. As for pursuing disqualified law-makers for their already paid salaries and allowances, it is absolutely in violation of Hong Kong labour legislation. It is, in point of fact, political persecution seeking to render the dissident law-makers bankrupt.
Now, National People’s Congress Standing Committee is not a law organization and its interpretation of the Basic Law in order to disqualify dissident law-makers violates the rule of law. (Sixtus Leung and Yau Wai-ching have brought the case to the Court of Final Appeal; Leung Kwok-hung is strongly leaning towards doing so, while the remaining three unseated law-makers have not yet made up their mind.) The question to ask is: Do Hong Kong judges have the moral courage to defend the rule of law in Hong Kong despite the illegitimate pressure from Communist China?
Retrospective Laws Usually Considered Inconsistent with Rule of Law
Senior Law Lord Tom Bingham (2011) Rule of Law: “Difficult questions can sometimes arise on the retrospective effect of new statutes, but on this point the law is and has long been clear: you cannot be punished for something which was not criminal when you did it, and you cannot be punished more severely than you could have been punished at the time of the offence. ” Lord Bingham (2011) takes predictability as the first essential element of the rule of law: “The law must be accessible and so far as possible intelligible, clear and predictable. ” The first essential element is closely related to the second one: “Questions of legal right and liability should ordinarily be resolved by the application of the law and not the exercise of discretion.”British law expert, Francis Bennion (2008) says, “A person cannot rely on ignorance of the law and is required to obey the law. It follows that he or she should be able to trust the law and that it should be predictable. A law that is altered retrospectively cannot be predicted. If the alteration is substantive it is therefore likely to be unjust. It is presumed that Parliament does not intend to act unjustly.”
The EU’s Court of Justice similarly espouses certainty in its jurisprudence, stating: “the principles of legitimate expectation and assurance of legal certainty are part of the legal order of the Community.” (Deutsche Milchkontor GmbH v Germany (Joined Cases 205-215/82))
United States Supreme Court case, Calder v. Bull, 3 U.S. 386 (1798): “Every law that takes away, or impairs, rights vested, agreeably to existing laws, is retrospective, and is generally unjust, and may be oppressive; and it is a good general rule, that a law should have no retrospect: but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion, or of pardon.”
Civilized Countries Severely Restrict Law Retroactivity
Civilized countries either expressly ban retroactivity of law or strictly confine it to exceptional circumstances for the good of individuals or community, e.g., punishment of war criminals, filling up taxation loopholes, requirement of rapists of children to register with the authorities after discharge from prison.
In the United States, Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution. The states are prohibited from passing ex post facto laws by clause 1 of Article I, Section 10. Admittedly, there are a few exceptions. One current U.S. law that has a retroactive effect is the Adam Walsh Child Protection and Safety Act of 2006. This law imposes new registration requirements on convicted sex offenders and also applies to offenders whose crimes were committed before the law was enacted.
In the United Kingdom, ex post facto laws are frowned upon, but are permitted by virtue of the doctrine of parliamentary sovereignty. Nonetheless, retrospective laws are infrequently enacted. For instance, by the Pakistan Act 1990, Pakistan was readmitted as a member of the Commonwealth of Nations, with effect from 1989. Retrospective criminal laws are prohibited by Article 7 of the European Convention on Human Rights, to which the United Kingdom is a signatory, but several noted legal authorities think that parliamentary sovereignty takes priority even over this. For instance, the War Crimes Act 1991 created an ex post facto jurisdiction of British courts over war crimes committed during the Second World War. In respect of civil law, taxation law has on multiple occasions been changed to retrospectively disallow tax avoidance schemes.
In New Zealand, the Interpretation Act 1999 stipulates that enactments do not have retrospective effect. The New Zealand Bill of Rights Act 1990 also affirms New Zealand’s commitment to the International Covenant on Civil and Political Rights and Universal Declaration of Human Rights, with section 26 preventing the application of retroactive penalties. Article 103 of the German basic law requires that an act may be punished only if it has already been punishable by law at the time it was committed (specifically: by written law, Germany following civil law).
Generally, the Finnish legal system does not permit ex post facto laws, especially those that would expand criminal responsibility. They are not expressly forbidden but instead the ban is derived from more general legal principles and basic rights. In criminal matters, exceptional retroactive laws are related to war criminals of the First and Second World Wars. In civil matters, such as taxation, ex post facto laws may be made in some circumstances. Article 12 of the constitution of Pakistan prohibits any law to be given retroactive effect.
Professor Albert Chen Hung-yee: Retrospective Interpretation may be Unfair to the People Concerned
When the six now-disqualified makers used the oath-taking occasion as a platform of protest, they could not possibly be aware that it was against the law, for the National People’s Congress did not interpret the Basic Law against them until one month after their oath-taking. Even Albert Chen Hung-yee, a law professor from HKU, deems this somewhat unfair:-
“Admittedly, when a new legislation or a new interpretation of law is retrospectively applied to a situation before the legislation or interpretation, it may be not consistent with the predictability principle of the rule of law. For when the person concerned carried out the act concerned, he or she could only judge the act’s legality or legal consequence based on the law or legal interpretation of that time. If that person’s act is judged based on an ex post facto law or interpretation of law, it may constitute unfairness to the person… Although National People’s Congress’ interpretation of the Basic Law has retrospective power, we should be aware there exists a certain tension between this kind of retroactivity and the predictability principle of law. When the four law-makers (now disqualified) took their oaths, based on the lenient ways the oath administrator and Legco Chairperson used to handle the requirements of oath-taking, they were unaware of the serious legal consequences of their “irregular” oath-taking manners. Even the oath administrator and the Legco Chair or legal consultant in the oath-taking ceremony concerned were unaware of the serious legal consequences.” （Ming Pao, translated by Chapman Chen）
Claiming back Paid Salaries and Allowances from Disqualified Law-makers Violates Labour Ordinance
When asked by reporters whether she would waive the requirement of the four newly disqualified law-makers (Lau Siu-lai, Nathan Law, Leung Kwok-hung, Yiu Chung-yim) to return their paid salaries and allowances, Carrie Lam, the Chief Executive of Hong Kong, replied that it would be decided by the Secretariat of Legco, which means that they will definitely be claimed. For the Secretariat of Legco has already demanded Sixtus Leung Chung-hang and Yau Wai-ching, who was disqualified last year, to return paid salaries and allowances. This is apparently in contravention of the Hong Kong Employment Ordinance.
The Hong Kong Employment Ordinance, Cap. 57
Termination of Contracts of Employment
An employer may summarily dismiss an employee without notice or payment in lieu of notice if the employee, in relation to his employment, – (a) wilfully disobeys a lawful and reasonable order;(b) misconducts himself;(c) is guilty of fraud or dishonesty; or(d) is habitually neglectful in his duties.
Employers should note that summary dismissal is a serious disciplinary action. It only applies to cases where an employee has committed very serious misconduct or fails to improve after the employer’s repeated warnings.
The six disqualified law-makers did not commit any dereliction of duty. As they are democratically elected, the oath-taking procedure is just a sort of red tape. Furthermore, they did not refuse to correct themselves despite repeated warnings. Even if there is reason to dismiss them summarily, the Employment Ordinance does not require the employee concerned to return all paid salaries and allowance. So the Hong Kong Communist Government’s requiring the disqualified law-makers to do so is simply political persecution packaged with law.
(The Chinese version of this article is available at 曾焯文：追溯釋法違反法治亂時空)